SJC Holds That “Modern Rule” on Easements Applies to Registered Land

Pinto_Donby Donald R. Pinto, Jr.

Case Focus

In its recent decision in Martin v. Simmons Properties, LLC, 467 Mass. 1 (2014), the Supreme Judicial Court (“SJC”) held that the rule it adopted in its landmark decision in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004) – which allows the owner of land burdened by an easement to relocate the easement or change its dimensions – applies to easements appurtenant to registered land.  Rejecting a contrary holding of the Appeals Court, the SJC affirmed an underlying Land Court ruling that registered land is not exempt from the “modern rule” of M.P.M. BuildersMartin not only clarifies that M.P.M. Builders applies to registered land, it confirms that, in the wake of M.P.M. Builders, a long line of cases concerning the rights of parties holding easements that are clearly described or are shown on a plan is no longer good law.

Plaintiff Clifford J. Martin (“Martin”) in 1969 purchased about one-third of an acre of registered land in a commercial-industrial district near the Medford-Somerville line.  Martin’s parcel – Lot 3A – has the benefit of several easements, including an easement of passage over Way A, which crosses a number of other lots in the area.  In 1993, defendant Simmons Properties, LLC (“Simmons”) purchased three of the lots that Way A crosses.  Simmons made various improvements on its parcels, and some of those improvements protrude into Way A.

In 2007, Martin sued Simmons in Land Court, alleging 15 acts of encroachment on Way A.  Some of these encroachments were initiated by Simmons; others predated its ownership of its lots.  While conceding that, to date, none of these encroachments prevented him from using Way A to access Lot 3A, Martin claimed he was entitled to have the encroachments removed so he could use the full width of Way A.  After trial, the Land Court ruled that Martin was not entitled to the removal of any encroachments from Way A.

The Land Court reasoned that, though the encroachments in Way A are within an easement referenced in Martin’s certificate of title, this confers on Martin no “absolute right to removal . . . .”  While the certificate provides certainty as to Martin’s title – including the existence of his easement over Way A – the court saw no reason to forsake the usual rules of property law applicable to unregistered land, under which the owner of the burdened land (Simmons) may use its land for all purposes not inconsistent with the rights of the easement holder (Martin).  The Land Court noted that, if Martin’s use of Lot 3A were to change, as a result of which the encroachments in question did materially interfere with his rights in Way A, Martin might then be entitled to “judicial adjustment” of the encroachments.

Martin appealed, and on the question of his right to removal of the encroachments, the Appeals Court reversed.  After noting the distinction between easements intended to remain fully open and those intended to provide only a “convenient passage,” the court stated, “we are aware of no case that holds that only a convenient passage is intended when a right of way is reserved over a way defined and located by reference to a Land Court plan.”  The Appeals Court found support for its view in a line of cases holding that, where the description of a right of way is definite and free from ambiguity – particularly where it is shown on a plan – the easement holder is entitled to use the entire width of the described way.  Having placed Martin’s easement over Way A into this category, the court concluded that “[a] finding that the obstructions do not interfere with present or future uses is immaterial . . . .”  With regard to encroachments that pre-dated Simmons’ ownership of its lots, the Appeals Court remanded the case to the Land Court for further findings to determine which party is responsible for their removal.

The SJC granted Simmons’ application for further appellate review and affirmed the Land Court’s ruling that the encroachments in Way A need not be removed.  The SJC held that the case is governed by its 2004 decision in M.P.M. Builders, supra, in which the court announced the adoption of the “modern rule” of § 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000).  Section 4.8(3) provides that, unless expressly prohibited by the terms of an easement, the owner of the burdened property can make reasonable changes in the location and dimensions of an easement to permit “normal use or development” of the property, but only if those changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the easement holder in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.  The SJC noted that, while M.P.M. Builders concerned the relocation of an easement, the same rule applies in a case like Martin, where the easement has not been relocated but rather its width has been narrowed in some places.

Regarding the fact that Martin’s easement is appurtenant to his registered land and is shown on a Land Court plan, the SJC rejected the Appeals Court’s view that this rendered the easement “immutable.”  The SJC found nothing in its precedents or in the land registration act to suggest that different rules apply to easements appurtenant to registered land.  The court noted that while the registration system provides certainty with respect to title – including by assuring owners of registered land that their easements continue to exist – it does not purport to grant additional property rights.  Thus, the SJC concluded, “we adhere to our well-established precedent and consider the easement here under existing jurisprudence as to recorded land.”

Martin is an important decision for two reasons.  First, it confirms that easements appurtenant to registered land are not accorded special status, and are subject to changes in their location and dimensions under the rule of M.P.M. Builders.  Second, more broadly, it makes clear that the long line of cases on which the Appeals Court relied – standing for the proposition that where an easement is described with precision or is shown on a plan, the easement holder has the right to use the full width of the easement – is no longer good law.  Under the “modern rule” of M.P.M. Builders, all easements are subject to changes in their location and dimensions unless by their express terms they prohibit such changes.  Thus Martin highlights an important drafting note for grantees of easements:  if you like the location and width of your easement, and you want to keep it, make sure it includes language prohibiting the kinds of changes otherwise authorized by M.P.M. Builders.

Donald R. Pinto, Jr. is a Director of Rackemann, Sawyer & Brewster, P.C. where he handles all types of real estate litigation.  He is the founder and editor of masslandusemonitor.com, a widely-read real estate and land use law blog. 

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Reflections on My Rookie Year

by Judge Robert B. Foster

Voice of the Judiciary

Foster_RobertThis past December 30th marked the first anniversary of my taking the oath as a Justice of the Land Court. Now that I’m no longer a rookie judge, it’s a good time to reflect on my first year on the bench.

First, let me answer the two questions everyone asks. Yes, there is a gavel on the bench, but I’ve never used it. No, the court didn’t give me a robe; I bought it myself, online. Very quickly, I learned to hike it up when I sit down so I don’t get it caught under the wheel of my chair. It took me longer to learn the Court’s internal procedures and to navigate the route to our courtrooms. The Land Court staff was enormously helpful and patient in guiding me through these equally difficult mazes. I especially appreciate their many subtle, face-saving hints, such as, “No, judge, that’s the elevator for the prisoners!”

What I never fully appreciated until I joined the bench, though, was the paradox at the heart of judging. I am constrained by the law—no matter what I think, I am legally, ethically, and morally bound to follow the law as stated in our statutes and interpreted by the SJC and Appeals Court, and to apply that law to the facts of the case to the best of my ability. At the same time, in every case I must make decisions, for the most part unreviewable, for which there is no other guide but my knowledge guided by my experience—for lack of a better word, my judgment. More often than not, these decisions test that judgment, and I am left to do my best, knowing that a decision is necessary, even if it is not the one that others might make or that even I might make with more experience.

It is with this paradox that I most need the lawyers’ help. I always try to remember that lawyers are before me because they are helping clients who believe they have been wronged. At the same time, lawyers should know that they are my partners in our common pursuit of justice. I’m fully aware that how the law applies to the facts is not often self-evident. Like every judge, I rely on the lawyers for well-written, well-researched briefs that educate me about the case. I need the lawyers to bring to my attention all applicable law, including contrary cases, and all relevant facts, even the unfavorable ones. The lawyer’s job is to show me the path through all the facts and the law, good and bad, to the result the lawyer is seeking.
Oral argument is as important to me as the briefs. On motions to dismiss or for summary judgment, I use the oral argument to test the limits of each side’s position and to give one side the chance to respond to the other side’s arguments. I look for where the parties agree so that I can identify what’s really disputed. But where oral argument is especially important is in helping me with the “judgment” decisions, for which there are always considerations beyond a reading of the law. This is where the lawyer’s advocacy skills really come into play. I need the lawyers to make sure that I’m taking into account all the considerations important to their clients when I make a decision.

To that end, allow me to provide some advice, based on my entire fourteen months on the bench. The lawyer’s presence and behavior in court has a profound effect on the proceedings. This is especially true at trial, where counsel is, in effect, the surrogate for the party, and where the lawyers and I are interacting over the course of several days. It is important to remember that, like the Eye of Sauron, “I see you.” I see every eye roll in response to an opponent’s argument, every shrug in response to a sustained objection, every whisper to co-counsel in response to disbelieved testimony. I especially notice the demeanor and behavior of counsel towards the witness and towards opposing counsel. I’m happy to say that the vast majority of the lawyers before me show real courtesy and civility to each other and to witnesses. But the lawyer’s demeanor goes deeper than civility.

Many lawyers, it seems to me, advocate from anger. This is natural—after all, the lawyer is here because her client, whether plaintiff or defendant, claims to have been wronged by the actions of the other side. The lawyer wants me to understand, even to feel the injustice done to her client. The most direct way to communicate this injustice, many lawyers believe, is to express the anger that their clients naturally feel at being in court.

This approach, while understandable, is ultimately self-defeating. Anger begets anger, and interferes with reaching a just outcome, either negotiated among the parties or issued by the judge. My experience has been that the most effective lawyers advocate from a position, dare I say it, of joy. They express joy at the opportunity to present their clients’ stories and to convince me of the justice of their cause. This is not some new age inner bliss; it is the fierce joy of battle. These lawyers relish the give and take, and embrace the role of partner with the court in reaching the right outcome for their clients. Advocating from joy does not mean shying away from one’s position; the most zealous and vigorous advocates in my court have been the joyous ones. In enjoying their advocacy, they give emotional support to their position. They invite, rather than insist, that the judge join them in looking favorably on their clients. They lead the judge to the conclusion that ruling for their clients is necessary to follow justice.

At my swearing in, I quoted those words of Moses: “Justice, justice shalt thou follow.” My rookie year has convinced me more than ever that this is our task, to follow justice. It is the work of a lifetime, both for me as a judge and for the lawyers appearing before me. But it is one we all should pursue with joy. As the saying goes, it is not incumbent upon us to finish the task, but neither are we free to desist from doing it.

Robert Foster is a Justice of the Massachusetts Land Court.  Before his 2011 appointment, he practiced with Rackemann, Sawyer & Brewster, P.C.  He is a graduate of Haverford College and Harvard Law School.