In the eight years since the Massachusetts Supreme Judicial Court’s (SJC) decision to allow more flexible relocation of easements, such adjustments have proven at times to be useful tools for solving real estate disputes. Although case law interpreting the SJC’s decision in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), has illuminated some facets of how the decision is being used and implemented, a number of challenging, unresolved issues leave considerable uncertainty for practitioners seeking to advise clients on easement relocation.
In M.P.M. Builders, the SJC adopted Section 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000), which abrogates the existing principle at common law that both the dominant and servient estate owners must agree on changes to the location of the right of way. Instead, Section 4.8(3) takes a more practical and flexible approach to regulating property rights and allows the owner of the servient estate “to make reasonable changes” to the location of an easement “to permit normal use or development of the servient estate.” In adopting Section 4.8(3), however, Massachusetts is in a small minority of jurisdictions, including Maryland, New York, Colorado, South Dakota, and Nebraska, that allow unilateral relocation of easements. Other states, such as Illinois and Kentucky, allow servient estate owners to make some unilateral changes to easements but do not allow complete relocations. South Carolina allows for only the relocation of implied easements by necessity.