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EASEMENTS AND AFTER-ACQUIRED PROPERTY

Landowners who purchase and combine multiple, adjoining lots can sometimes find themselves in a quandary if there is an existing easement that benefits only one of those lots. To illustrate, picture three adjacent lots: A, B, and C. When these lots were initially created, an easement was created on Lot A so that the owner of Lot B could access his lot. There was no similar easement created for Lot C at that time.

Presently, Landowner 1 owns Lot A. Landowner 2 purchased Lot B, and then a few years later, also purchased adjacent Lot C, which was undeveloped. Landowner 2 would like to tear down the house on Lot B, and instead build a new house on his land so that it straddles both Lot B and Lot C. He would also like to use the easement that exists on Lot A in order to access his new house only in emergencies or for repairs.

The question is, can he?

Black letter law initially suggests that the answer is no. It is well-settled law that "[a]fter-acquired property can benefit from an easement . . . only if the easement is an easement in gross, a personal interest in or right to use land of an other, or the owner of the after-acquired property receives the consent of the owner of the servient estate." McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359, 364 (1996). This is because a right of way easement can only be used to access the property that was specifically made to benefit from the easement. It cannot be used to access other property which happens to have the same owner as that which benefits from the easement, regardless of whether the properties are adjoining and have been merged into a unitary parcel. To allow such use of the easement might result in overburdening or overloading of the easement rights originally granted.

Yet, this principle seems slightly unfair when the underlying use of the dominant estate is not necessarily being enlarged, but will instead just be moved so that it straddles both the dominant estate and the adjoining lot. In our example, Landowner 2 is trying to tear down the existing house (which is located on the dominant estate or the lot with the benefit of the easement) and construct a new home on land that now includes both Lot B and Lot C. Should the fact that Lot C did not have the benefit of the easement bar the use of that easement in totality? From an equitable standpoint it does not seem reasonable.

Sometimes, however, the language of the original grant of easement is such that after-acquired property can benefit from the easement. See, e.g., Carbone v. Vigliotti, 222 Conn. 219 (1992) (which is not binding in Massachusetts, but an interesting case nonetheless). But these kinds of cases are fact intensive and entirely dependent on the exact wording of the deed or other granting instrument.

If this kind of drafting or interpretation is not available or helpful, what other options would Landowner 2 have in response to a threat from Landowner 1 that use of the easement, in any capacity, will be challenged?

Well, for starters, unless there is actual, present use of the easement, the case for overloading the easement might be premature and not ripe for adjudication. It's one thing to lay out house plans on paper, mention the easement in deeds and other conveyancing instruments, or even build the house. It's quite another thing altogether to physically use the right of way in conjunction with the new house. Moreover, even if there is a viable case to be made for overloading by the servient estate holder, it does not mean that the easement is then somehow extinguished en toto. The dominant estate holder does not lose his rights simply because he may have overloaded the easement at some time. There may very well be some use of the easement that can remain that are short of serving the new house and entirely contained on Lot B.

As with most cases, the best course of action for all interested parties, but particularly the dominant estate holder, is to first figure out if there is a way to convince the servient estate holder to consent to the use of the existing easement in conjunction with the proposed use. In many cases, the proposed use (and related easement access) is less intense than the rights that currently exist. If that does not result in a workable solution for the dominant estate holder, then pursuing a declaratory judgment action in court might ultimately be the next step.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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