How to Relocate an Easement
Generally, an easement is a right to use, but not to exclusively possess, the real property of another. The land that is benefitted by an easement is referred to as the dominant estate, while the land that is burdened by an easement is referred to as the servient estate. Easements have rights and obligations which can add a layer of complexity to owning any parcel of land, be it a home, condominium, or commercial building.
One may wonder, can a servient estate change the location or boundaries of an easement? Yes, if the instrument by which the easement was created does not expressly forbid its relocation. If the dominant estate consents to relocating the easement, the servient estate may relocate the easement by written agreement. Without such consent, the servient estate cannot relocate the easement through self-help remedies. For example, the servient estate cannot relocate a driveway to a different part of their land if the driveway is the subject of an easement. Instead, the servient estate must obtain authorization from a court by a lawsuit known as an action for declaratory judgment.
In order to obtain a Declaratory Judgment that authorizes the relocation of an easement, the servient estate must satisfy three criteria. The criteria are set forth in Restatement (Third) of Property (Servitudes) § 4.8(3) (2000), which the Massachusetts Supreme Judicial Court adopted in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004). Absent an agreement, a servient estate may change the location or dimensions of an easement at their own expense only if the changes do not (1) significantly lessen the utility of the easement, (2) increase the burdens on the owner of the easement in its use and enjoyment, or (3) frustrate the purpose for which the easement was created. M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004). In Massachusetts, this analysis applies to both recorded and registered land. Martin v. Simmons Properties, LLC, 467 Mass. 1 (2014).
A servient estate may relocate an easement even if doing so could potentially result in a decrease in value of the dominant estate’s real estate parcel. See Carlin v. Cohen, 73 Mass. App. Ct. 106, 110 – 112 (2008) (evidence of diminution in value of dominant estate’s parcel resulting from relocation of easement across servient estate, thereby obstructing dominant estate’s view, not relevant in analysis where dominant estate did not have a view easement).
Often, the best option to relocate an easement is by agreement. Of course, this requires the consent of the dominant estate owner(s). If the servient estate is not unable to obtain such consent, the other option is to commence a declaratory judgment action in the appropriate court. Whether the three necessary criteria are satisfied depends on the facts of each case. No matter which option or estate the parcel at issue is, the best course of action is to consult an attorney when contemplating relocation of an easement.