Easements come up a lot in our practice at Phillips & Angley (for a recap of easement basics, see our April 19, 2012 post). When we receive a call involving an easement, the easement, or right of way, is typically the focus of the dispute, but sometimes an easement itself can be the vehicle for resolving the controversy, particularly in adverse possession cases. This post concerns a change in the law of easements, effected by the Supreme Judicial Court in 2004, which has created new flexibility for property owners in regulating rights of way and defending against easement claims over their properties.
In 2004 the Supreme Judicial Court handed down its decision in M.P.M Builders, LLC v. Dwyer, 442 Mass. 87 (2004), in which the court (Cowin, J.) adopted § 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000), which states as follows:
Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.
By adopting this provision from the Restatement, the court abrogated the existing principle at common law that both the easement holder and the owner of the land had to agree to change the location of the right of way.
The Supreme Judicial Court made this change for several reasons. First, it "maximizes the over-all property utility by increasing the value of the servient estate [i.e., the property over which the right of way extends] without diminishing the value of the [easement]; minimizes the cost associated with an easement by reducing the risk that the easement will prevent future beneficial development of the servient estate; and encourage the use of easements." Second, it generally brings the relocation of easements into greater accord with this area of the law. The existing common law rule was an outlier in relation to other relevant principles of law, such as "the owner of real estate may make any and all beneficial uses of his property consistent with the easement." Thus, under the prior rules, there was the odd result that the owner of the property could make all changes to his property not inconsistent with the easement, except for moving its location. Third, it preserves the difference between an easement or use right over and full ownership of real estate, because "[a] rule that permits the easement holder to prevent any reasonable changes in the location of an easement would render an access easement virtually a possessory interest rather than what it is, merely a right of way."
The new right of a property owner to relocate an easement unilaterally, however, was not made absolute. Section 4.8(3) itself places many restrictions on that right: the property owner must bear the expense of the relocation, the relocation can only be made "to permit normal use or development" of the property, and any relocation is subject to the criteria found in subsections (a)-(c), intended to preserve the utility of the easement. In addition to these conditions, the Supreme Judicial Court also imposed the requirement that the property owner seek a decree from a court of competent jurisdiction before relocating the easement.
In the eight plus years since the Supreme Judicial Court decided M.P.M Builders, there have been a handful of decisions from the Appeals Court and the Land Court applying that holding and § 4.8 of the Restatement, fleshing out the contours of this change.
In Carlin v. Cohen, 73 Mass. App. Ct. 106 (2008), the Appeals Court held that building a significantly larger house is a "normal use or development" justifying a relocation under M.P.M., and that diminution in the value of the easement holder's property (not the right of way itself, but his property) is irrelevant under M.P.M. The Appeals Court has otherwise held that M.P.M. applies to prescriptive easements, see Trenz v. Town of Norwell, 68 Mass. App. Ct. 271, 280 (2007); and to implied easements by necessity. See Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285, 296 (2005). We have found these holdings particularly useful in our practice because they provide flexibility to property owners in defending claims for prescriptive or implied easements. Frequently, in the alternative from claiming that easements of these types do not exist over our clients' properties, we have been able to advocate for more palatable locations assuming their existence.
Of perhaps greatest significance in expanding the reach of M.P.M., Judge Sands of the Land Court has issued two decisions in which he has held that M.P.M. permits the property owner unilaterally to narrow or diminish the size of the easement area burdening her property. Hogan v. Gordon, 19 LCR 497, 502-503 (Oct. 7, 2011) (Misc. Case No. 376292) (Sands, J.) affm'd at 82 Mass. App. Ct. 1122 (2012) ("Although the Plaintiffs argue that narrowing the easement is not permissible, M.P.M. Builders clearly states that reasonable changes can be made to 'the location or dimensions of an easement") (emphasis in trial decision); Nora, LLC v. Gelch, 19 LCR 331, 335-336 (July 12, 2011) (Misc. Case No. 319094) (Sands, J.) (same). This advancement in the application of M.P.M. has huge practical potential, as frequently rights of way are never built out to the specifications of the underlying plans of record. This application of M.P.M. provides a potent alternative to various claims for extinguishment of portions of easement areas, by abandonment, adverse use or implied waiver, all of which can be quite difficult to prove at trial.
While the foregoing decisions have broadened the application of M.P.M., some cases have fleshed out the limitations of the rights conferred by that decision. In Strecker v. Tavares, 2010 WL 2306132, *3-4 (Mass. App. Ct.) (June 10, 2010), a panel of the Appeals Court in an unpublished decision held that "unclean hands" can bar an M.P.M. relocation claim, i.e., if the property owner gets the easement holder to change his position to his detriment based upon the present location of the easement, that property owner may be precluded from taking advantage of his rights under M.P.M. In Danforth Village, LLC v. CSE Framingham, LLC, 2011 WL 940502, *5-6 (Mass. Land Court) (March 14, 2011) affm'd at 81 Mass. App. Ct. 1129 (2012), the Land Court, Grossman, J., held that "nowhere, in allowing for judicially-sanctioned relocation of an easement did the Supreme Judicial Court purport to allow the servient estate, in effect, to extinguish an easement when a nearby public way will serve the same purpose as the deeded right of way. M.P.M. Builders simply does not allow a servient owner to unencumber his property in this fashion." In short, M.P.M. does not allow relocation of an easement to land of a stranger.
Two other decisions from the Land Court have underscored the fact that meeting the requirements of M.P.M. for an easement relocation does not speak to whether that relocation complies with local zoning. See Pasquine v. Newhall, 17 LCR 569 (Aug. 31, 2009) (Misc. Case No. 329770) (Trombly, J.) (upholding conditions placed on grant of special permit to relocate common driveway); Reynolds v. Baker, 2008 WL 5394919, *5 (Mass. Land Ct.) (Dec. 29, 2008 ) (Scheier, C.J.) (declining to consider M.P.M. claim before necessary zoning relief in place to move common driveway). In both of these cases provisions of the local zoning bylaws required special permit relief for the development of a common driveway. Thus, before initiating an relocation action under M.P.M. practitioners must consider the zoning implications of such a claim.
While it cannot always be successfully invoked, and many questions remain unanswered, such as how it works with multiple servient estates, the first eight years of M.P.M.'s application has demonstrated the unquestionable usefulness of the change in the law effected by that decision.
Written by Nicholas M. Shapiro, Esq., of Phillips & Angley on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.