In Taylor v. Martha's
Vineyard Land Bank Commission, 475 Mass. 682
(2016), the Supreme Judicial Court reaffirmed the Commonwealth's
nearly 180-year prohibition on the use of appurtenant easements to benefit
after-acquired property absent the servient owner's consent. The SJC preserved this so-called "overloading"
doctrine on the basis that the benefits of keeping this longstanding,
bright-line rule outweighed any costs associated with its rigidity.
Even though Taylor presented extremely sympathetic
facts for a deviation from the traditional per se ban on overloading, the SJC
nonetheless opted not to change existing law.
While the case affirms what we
already knew about flagrant violations, it still leaves unanswered questions
for closer calls that will inevitably lead to litigation over the use of
easements to benefit after-acquired property.
A brief
recap of Taylor will help set the
context for discussing unanswered questions left in the decision's wake. The Martha’s Vineyard Land Bank Commission
owned four parcels on the western edge of Martha's Vineyard atop the Gay Head
Cliffs – commonly known as the Aquinnah
Headlands Preserve. The Land Bank sought
to connect two of its hiking trails to create a single loop for visitors.
The problem,
however, was that the Land Bank's parcels did not have direct access onto the
closest public way, but instead benefitted from two separate easements over an
abutting property owned by the Taylor Realty Trust, which contained a small,
seven-room hotel and had direct access to a public way.
Neither of
the Land Bank's easements, which were both created before the Land Bank took title,
was appurtenant to all four of its parcels.
One easement – referred to as the Disputed Way – benefitted three of the
four parcels, and the other easement – referred to as the Twenty-Foot Way –
benefitted only the fourth parcel. That
fourth parcel was referred to as Diem Lot 5.
Appealing a
permanent injunction issued against connecting the two trails, the Land Bank's
opening brief to the SJC compellingly highlighted the rigidity of the outcome
and the overloading doctrine:
[A]lthough two people using the two
permitted trails could embrace or shake hands across the line dividing Diem Lot
5 and [the other parcels], neither would be permitted to cross to the other
lot, and the two trails, although they might come within a fraction of an inch
of each other, may not connect over the invisible boundary line. . . . Ironically, the effect of the Land Court
judgment is that pedestrians can walk from the public street over the Taylors'
Property and go in either direction – over the Disputed Way or the Twenty-Foot
Way – to arrive at the same point, i.e., the southwesterly corner of Diem Lot
5, but cannot cross that invisible boundary but must instead turn around, retrace
their steps to the Taylors' Property and go up the alternate route to reach the
same destination and fully enjoy all trails on the North Head Preserve,
creating more burden on the servient estate.
Brief of
Appellant Martha's Vineyard Land Bank Commission at 7-8. Essentially, the Land Bank argued that a
fact-focused, overburdening-type analysis should apply instead of the
traditional per se rule against overloading.
Although
many practical arguments for more flexibility could be made under these
circumstances, especially for this type of defendant, the SJC decided that the traditional
ban remained the better rule for a number of interesting reasons. The court noted its general skepticism against
altering longstanding rules of property (or contract) law, where default rules
often influence individual action. They
rationalized that the per se ban avoids the difficult, fact-intensive
litigation of these issues as is common in overburdening disputes. The SJC also expressed concern that a
fact-focused analysis could lead to less predictable outcomes and "might
not be affordable to owners of small servient parcels who are litigating
against defendants with the financial means to acquire and develop multiple
parcels of land." Taylor, 475 Mass. at 689.
Following Taylor, servient landowners will
continue to have the potent weaponry of a permanent injunction for an obvious
violation. For instance, consider the
following example set in a sleepy, residential suburb.
The Smiths
own a residential property known as Lot 1, which is burdened by a right-of-way
for the benefit of a neighboring parcel known as Lot 2. If the Jones family then acquires Lot 2 and
an abutting parcel (Lot 3) that does not benefit from the right-of-way, and
seeks to build a new house straddling the boundary line between Lot 2 and Lot
3, Taylor certainly indicates that
any use of the right-of-way should be enjoined.
Use of that easement would inherently violate the overloading doctrine
because it will always benefit the after-acquired Lot 3.
Yet, it is
inevitable that fact-intensive issues will persist despite the overloading
doctrine's continued rigidity. For
example, if the Jones family builds their home solely on Lot 2 instead of
straddling the boundary line between their two parcels, what, if any, uses can
that family make of Lot 3? Is a
permanent injunction still appropriate if Lot 3 is only a swimming pool for the
kids to use during the summer? How about
a workshop for dad's furniture-making hobby that he enjoys every few weekends? What about the 25 apple trees that mom planted
on Lot 3 and prunes twice per year?
When the
owners of dominant estates are savvy enough to limit their primary use of
combined parcels to the portion that benefits from the easement only, real
estate litigators will still be arguing over whether injunctive relief is
appropriate in all of these circumstances.
The focus is likely to be on the uniformity of the uses made of the
dominant and after-acquired parcels and whether that level of uniformity is
sufficient to make injunctive relief appropriate. These situations will involve fact-intensive
overloading litigation even after the SJC's reassuring, and correct, decision
in Taylor.
Matt Furman of Todd & Weld LLP in Boston
concentrates his practice on complex commercial litigation, including real
estate matters. His experience with real estate litigation includes
handling disputes over easements and commercial leases, as well as defending
and challenging variances and permits. He can be contacted by email at mfurman@toddweld.com.
