Real Estate Tip: The Case of the Shrinking Easement


Unlike most states, Massachusetts land transactions may be “registered” in a procedure conducted at the “Land Court.” The Land Court’s own engineering department reviews survey plans before registration is final. In this particular case, Mr. Martin’s land had gone through that process showing Martin’s 40’ wide easement in a very specific location. Simmons Properties placed part of a building inside the 40’ width. Martin sued, stating nothing could be clearer than a registered plan. The highest court in Massachusetts disagreed in Martin v. Simmons Properties SJC 11325 January 16, 2014.

The Court relied on the Restatement (Third) of Servitudes, a scholarly work that analyzes the law on specific topics from all jurisdictions. Section 4.8 (3) of the Restatement says that owners like Simmons can change the location or dimensions of an easement like Martin’s in order to permit normal use or development of their own land. However, the change must 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.

Lesson: If you want to prevent your easement from being modified by the owner of the land your easement burdens, consult very experienced real estate counsel, and be very clear in telling them what you want your easement to do and to be. 


Topics:  Easements, Real Estate Development, Surveys

Published In: Commercial Real Estate Updates, Residential Real Estate Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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