Although it includes many of the oldest rules in our legal tradition, real property law is not immune to modernization and to the greater trend toward legal constructs that better reflect practical human experience than their formalistic forbearers. The Restatement (Third) of Property largely embodies this trend and has been relied on by many state courts to jettison old rules that no longer make practical sense. In fact, I have written in this very journal about an example of the Restatement’s trend of modernization concerning easement relocation. Although this trend proceeds at a forward march, there nevertheless remain vestiges of real property law’s ancient formalism. In keeping with the Restatement’s pragmatic approach, however, practitioners should not be intimidated by a formalistic doctrine’s ancient pedigree in advocating for its abolition, or exceptions to it, when common sense supports that outcome. The doctrine of overloading of an easement provides a prime example of this principle.
Overloading and Overburdening
In Massachusetts, we use the term “overloading” to refer to a particular type of overburdening or misuse of easement rights. Justice Mark Green of the Massachusetts Appeals Court has described the various species of overburdening in the Commonwealth, as follows:
The term “overburden” is occasionally used to describe any use that exceeds the scope of rights held under an easement. In Murphy v. Mart Realty of Brockton, Inc., the court said that the use of an easement to serve land other than the dominant estate to which the easement is appurtenant “overloaded” the easement. Some commentators have used “overburden” to describe only use of an easement for a purpose different from that intended in the creation of the easement, “overload” to describe the situation (as in the present case) where an appurtenant easement is used to serve land other than the land to which it is appurtenant, and “nuisance” to refer to overly frequent or intensive use.
Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315, 319 n. 12 (2005). Thus, overburdening claims, generally, focus on the uses made of the servient estate—whether a type of use is outside the scope of the easement or whether an otherwise permissible type of use is being made to such a degree or level of intensity that it has exceeded the easement’s scope. In either case, the inquiry is highly factual; it is trained on whether, in fact, a new burden has been placed on the servient estate, beyond the parties’ original intent and reasonable expectations.
In contrast, overloading does not depend on the use actually made of the servient estate—whether there is, factually, an added burden on the servient estate at all. Instead it hinges on the identity of the property that benefits from the use, whatever that use might be. According to the traditional doctrine, an overloading occurs whenever the servient estate is used for the benefit of more than the original dominant estate. Though conceptually distinct from the other species of overburdening, Massachusetts case law, however, does not treat overloading as a doctrine independent of overburdening and has used the above-quoted terms interchangeably. See, e.g., Swensen v. Marino, 306 Mass. 582, 585 (1940) (“overload” used to describe overly intense use of easement).
What we refer to here in Massachusetts as “overloading” is uniformly recognized, in substance, if not in title, throughout the country. See, e.g., Perdido Place Condominium Owners Assoc., Inc. v. Bella Luna Condominium Owners Assoc., Inc., 43 So.3d 1201, 1206 (Ala. 2009) (“Perdido Place”); Heartz v. City of Concord, 148 N.H. 325, 330 (2002); Leffingwell Ranch, Inc. v. Cieri, 276 Mont. 421, 432-433 (1996); Mancini v. Bard, 42 N.Y.2d 28, 31 (1977); Robertson v. Robertson, 214 Va. 76, 81 (1973); Schmoele v. Betz, 212 Pa. 32, 36 (1905); Holmstrom v. Lee, 26 S.W.3d 526, 534 (Tex. Ct. App. 2000); Wetmore v. Ladies of Loretto, Wheaton, 73 Ill. App.2d 454, 464 (1966). This principle of overburdening law is also codified in the Restatement (Third) of Property, Servitudes § 4.11 (2000): “Unless the terms of the servitude . . . provide otherwise, an appurtenant easement or profit may not be used for the benefit of property other than the dominant estate.”
Though formalistic—in that actual use of the servient estate does not matter—overloading as a legal principle tends to make practical sense. The use of an easement for an enlarged dominant estate frequently can equate with the de facto creation of an additional servitude—the imposition of a significant, added burden—on the servient estate. This is particularly so where the after-acquired property itself becomes the locus of a substantial subdivision, in addition to the subdivision of the original dominant estate.
The formalistic application of overloading runs into trouble, however, when faced with a circumstance where the expansion of the dominant estate does not bring about any meaningful change in use. For instance, should the doctrine apply when a single-family lot is simply made larger? Arguably such application represents the pinnacle of favoring form over substance. A handful of appellate courts throughout the country have considered these types of scenarios. See Perdido Place, 43 So.3d at 1206 (condominium common spaces and tower straddle historic lot line); Carbone v. Vigliotti, 222 Conn. 216, 224 (1992) (two-family house straddles historic lot line); Brown v. Voss, 105 Wash.2d 366, 372–373 (1986) (single-family home straddles historic lot line); Rhett v. Gray 401 S.C. 478, 497 (2012) (“5.97 acres contained one house” and a “cottage”); Soho LLC v. Bergman, 81 A.D.3d 410 (N.Y.A.D. 1 Dept. 2011) (hotel comprised of dominant estate and aft-acquired property); Schadewald v. Brule, 225 Mich. App. 26, 31 (1997) (garage for home on dominant estate built on aft-acquired property); Wetmore, supra, at 459–460 (“House of Studies,” being part of parochial school otherwise on dominant estate, straddles historic lot line).
In all but two of these cases, the doctrine did not carry the day and the courts did not enjoin the continued use of an easement by the expanded dominant estate, where such technical overloading would not inaugurate increased use of the easement. Compare Perdido Place, supra; Carbone, supra, at 225; Brown, supra, at 372–373; Rhett, supra, at 499; Wetmore, supra, at 466; with Soho LLC v. Bergman, supra; Schadewald, supra. These cases exemplify two general approaches used by the courts in rejecting technical claims of overloading. The courts have either (1) created an explicit exception to overloading, see Perdido Place 43 So.3d at 1206; Carbone, 222 Conn. at 225; or (2) blessed trial judges’ exercise of discretion declining entry of permanent injunctive relief out of fairness. See Brown, 105 Wash.2d at 372-373; Rhett, 401 S.C. at 493–497; Wetmore, 73 Ill. App.2d at 466.
Exception to the Doctrine
The Alabama and Connecticut supreme courts carved out exceptions to overloading in two scenarios: (1) when the use of the servient estate made by the dominant estate and the after-acquired property could not be disentangled, see Perdido Place, 43 So.3d at 1206 (because “it is impossible to state that any use of the beach-access easement by Bella Luna owners would not be for the benefit of property within the dominant tenement,” use by such owners does not “overburden the servient estate . . . as a matter of law”); or (2) when the expansion of the dominant estate does not usher in any change or increase in use of the servient estate. See Carbone, supra, at 225 (“when no significant change has occurred in the use of the easement from that contemplated when it was created, as in this case, the mere addition of other land to the dominant estate does not constitute an overburden or misuse of the easement”). According to these two state high courts, such factual scenarios were each sufficient to forestall application of the doctrine.
In Perdido Place, the original dominant estate and the after-acquired property were assembled and collectively developed as a condominium complex. Accordingly, the controversial use by the non-dominant estate could not be severed from the use by the dominant estate. On this point, the Alabama Supreme Court reasoned as follows:
[I]t is impossible to state that any use of the beach-access easement by Bella Luna owners would not be for the benefit of property within the dominant tenement. As already noted, the Bella Luna owners all have an undivided ownership interest in the Bella Luna common areas, and it is undisputed that some of those common areas are located on the tract of land originally conveyed by Cummans to P & C and to which the easement is appurtenant. Moreover, it is readily apparent from the pictorial evidence submitted that the actual condominium tower traverses both the land formerly owned by Cummans and the land formerly owned by Fudpuckers, so even some individual units likely overlap both properties. Thus, while it was possible in Loveman to state conclusively that the disputed use of the easement was prohibited because that use clearly was for the sole benefit of property outside the dominant tenement, we cannot do the same in this case because each use of the disputed beach-access easement by a Bella Luna unit owner would clearly not be for the sole benefit of property outside the dominant tenement. Rather each owner's use would necessarily be for the benefit of that owner's parcel of property—which parcel is made up of both the owner's individual unit as well as that owner's interest in the common areas, some of which are within the dominant tenement. Accordingly, we cannot say that the use of the beach-access easement by the BLCOA overburdens the servient estate, i.e., Perdido Place, as a matter of law.
In Carbone, the Connecticut Supreme Court used the underlying purpose of the doctrine itself to exempt such fact patterns from the doctrine’s operation. See Carbone, supra, quoting 2 G. Thompson, Real Property (1961 Repl.) § 322, p. 77. It stated that “[t]he doctrine that ‘[a]n easement cannot be made to attach to other land which the owner of a dominant estate may subsequently acquire’ was intended to protect the servient estate from the use of an easement in a manner or to an extent not within the reasonable expectations of the parties at the time of its creation.” Id. (citations omitted). Applying the doctrine to situations where no new burden is imposed on the servient estate as a matter of fact does nothing to further the purpose of the doctrine.
Later, the court also eschewed the formalistic application of the doctrine because it does not “reflect the present day understanding of the law of easements and servitudes contained in the Restatement (Third) of Property (Servitudes).” Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 829. “[Section] 4.1 of the Restatement (Third) makes the intentions or the reasonable expectations of the parties the overarching consideration in the construction of a servitude.” Id., at 831. The court later held that these “reasonable expectations,” considered primary under the Restatement (Third),
allow the extended use of [an] easement appurtenant to the dominant estate under circumstances where there had been a so-called expansion of the dominant estate, by virtue of the subsequent acquisition of a nondominant estate by the owner of the dominant estate, and where the extended use of the easement to the benefit of the nondominant estate would not result in a material increase in the use of the servient estate, in other words, an additional burden to the servient estate.
Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. at 516 (recognizing exception created in Carbone, supra). See also Heartz v. City of Concord, 148 N.H. at 331–332 (citing § 4.1 of the Restatement in concluding easement may benefit non-dominant estate). These decisions should embolden practitioners not to take even the most well-settled legal proposition for granted. As a matter of law, there should be practical, factual limits on every formal legal doctrine, and courts are frequently open to this reality.
Equitable Discretion to Ignore the Doctrine
Rather than define a de jure exception to the doctrine, some states have empowered trial judges to decline injunctive relief when to do so would be unfair because the complained-of use does not reflect a material increase in the burden to the servient estate. See Brown, 105 Wash. 2d at 372–373; Rhett, 401 S.C. at 499; Wetmore, 73 Ill. App. 2d at 466 (“[w]hile the erection of the House of Studies building on part of the 40 acre tract results in a technical misuse of the easement granted appurtenant to the 10 acre tract, such trivial and inconsequential misuse neither justifies the issuance of an injunction restraining defendant's right to use the easement expressly granted, nor warrants the authorization granted to plaintiff to close Hawthorne Lane as a means of access to defendant's property”). Each of these jurisdictions recognizes the doctrine of overloading of easement rights and each decision acknowledges that the particular rights of way at issue had been misused. See Brown, supra, at 372; Rhett, supra, at 494, quoting Wetmore, supra, at 464. But, these appellate courts nevertheless sanctioned the trial judges’ decisions not to enter permanent injunctions, based on basic equitable principles of fairness.
For example, after canvassing the relevant case law from other states, the Rhett court stated
[m]ost of the case law provided by the Rhetts starts with the same principles that South Carolina jurisprudence expresses: an owner of an easement cannot materially increase the burden of the servient estate or impose thereon a new and additional burden. However, other states have determined that expanding the use of an easement to property that is not appurtenant is not worthy of an injunction in situations in which the expanded use does not increase the burden. South Carolina has not expressed such a principle, but in those cases the decisions were trusted to the trial court's judgment to weigh the particular facts.
Id. at 496. The Rhett court deemed that the trial judge properly exercised his discretion in declining to enjoin a mere technical overloading of the relevant easement. This rationale, though supporting a slightly different holding in Rhett, is substantially identical to that of the Connecticut Supreme Court in carving out an exception to the doctrine.
Nevertheless, this second set of decisions demonstrates another method of taking aim at the technical application of an old legal doctrine, apart from advocating for a formal exception. In most real estate disputes, the trial court is asked to exercise discretion in determining whether to grant equitable relief. Such determinations inherently require an assessment of basic fairness and provide practitioners an opportunity to advocate, in essence, for a case-specific exception to formalistic legal doctrines, when those rules are ill-suited to particular fact patterns and the court has not established any sort of explicit exception.
Although the Restatement codifies overloading, these decisions, making small but meaningful exceptions to the doctrine, are more consistent with the overall, pragmatic spirit of it. For example, Section 4.8(3) of the Restatement endorses the unilateral relocation or dimensional modification of an easement by the servient estate, when such changes do not “significantly lessen the utility of the easement,” eschewing the old, common law requirement of bilateral consent. Nevertheless, just as a servient estate owner should be able to relocate or diminish the size of an easement when to do so will not materially affect the use of the easement, a servient estate owner should not be able practically to unburden her property simply because the dominant estate has been made incrementally bigger without any meaningful change in use of the easement.
Moreover, it is not as if the courts do not have the tools in hand to remedy a true overburdening that might arise in the future from a merely technical overloading; ordinarily, as practitioners know, the overburdening analysis is highly fact-intensive. Carving out a limited exception to overloading, when there is no change in use in the dominant estate occasioned by its expansion, if anything, would make this subset of overburdening law more consistent with the balance of the same, rather than a hypertechnical, formalistic outlier.
Finally, the approach of these decisions makes perfect sense from a policy perspective, in the age of widespread suburban up-zoning (which is generally a good thing in terms of minimizing mansionization). Real property law principles should bend to regulatory changes. Property owners should not be forced into a Faustian bargain between compliance with local zoning—by increasing the square footage of their properties—and the effective loss of their access rights.
Indeed, where the practical rubber hits the legal road is that it is not reasonable for a servient property owner to expect that the dominant estate shall never grow larger, as local zoning lot size minimums, setbacks and frontage requirements increase and lot coverage ratios decrease. In fact, the benefits of all these zoning changes redound, most of all, to direct neighbors, including servient estate owners, who enjoy increased privacy and property values as a consequence. To allow these property owners effectively to unburden their properties as well would be an abject and unfair windfall, outside of their reasonable expectations. In this way, overloading may reflect the last bastion of hypertechnical formalism in real property law, the days of which are numbered.
Nevertheless, the practical limits of overloading and these cases exemplify the maxim that real estate practitioners should never passively accept the literal and logical application of ancient legal doctrines when it makes no sense and leads to absurd results in practice. Courts throughout the country are ready, willing, and able to delineate the outer bounds of formalistic real estate doctrines.
Keywords: real estate litigation, condemnation, overloading doctrine, overburdening
Nicholas P. Shapiro is an attorney at Phillips & Angley in Boston, Massachusetts.
Copyright © 2015, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).