Real Estate Tip: The Case of the Shrinking Easement


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.

Today’s real estate tip is brought to you by Rick Smith, a LEED Accredited Professional and member of Bernstein Shur’s Real Estate Practice Group and Green Building Team. Stay tuned for more useful tips for real estate professionals.

For more information, contact Rick at or 603 623-8700 ext. 8829 or 207 774-1200.