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The Limits of Appurtenance

A few years ago, we posted a piece on easement essentials and types of appurtenant easements. Expanding on that theme, this post focuses on the concept of appurtenance and the inherent limitations it places on such use rights. As the prior post informed, appurtenant easements run with, and benefit, the land to which they attach; whereas in gross easements are personal use rights. Most easements are appurtenant rather than in gross because, as a matter of Massachusetts law, "[a]n easement is not presumed to be personal unless it cannot be construed fairly as appurtenant to some estate." Willets v. Langhaar, 212 Mass. 573, 575 (1912).

Though presumed, appurtenance nonetheless requires a logical nexus between the use right and the dominant estate to which it is appurtenant. This logical connection is met when (1) "it appear[s] that the easement was created for the purpose of benefitting the possessor of that land in his use of it," (2) "the use permitted by the easement must be such as really to benefit its owner as the possessor of that tract of land", and (3) "the easement must in some degree benefit the possessor of the land in his physical use or enjoyment of the tract of land to which the easement is appurtenant". Denardo v. Stanton, 74 Mass. App. Ct. 358, 361 (2009), quoting the Restatement of Property, § 453 & comment b (1944) (quotations omitted).

This connection, however, need not be apparent to the servient estate owner; it simply must exist as a matter of fact. See id., at 362-363. Moreover, "[a]n appurtenant way ordinarily does touch the close to and from which it leads, and that it should is commonly essential to its enjoyment; but it is not always thus essential, and, when not, the dominant may be separated even at a long distance from the servient tenement." Jones v. Stevens, 276 Mass. 318, 325 (1931). In other words, there is no particular distance requirement between easement/servient estate and the dominant estate for an easement to be considered appurtenant. The use of the easement simply needs to be related to the use and ownership of the dominant estate.

Based on this relationship between easement and dominant estate, appurtenance itself imposes constraints on the scope of such use rights. First, because appurtenance exists "'when the easement is created to benefit . . . the possessor . . . in his use of the land'"; Schwartzman v. Schoening, 41 Mass. App. Ct. 220, 223 (1996), quoting the Restatement, supra; it follows that an appurtenant easement cannot be used to serve more property than the land to which it is appurtenant. See McLaughlin v. Board of Selectmen of Amherst, 422 Mass. 359, 363-365 (1996); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 678-679 (1965) ("[a] right of way appurtenant to the land conveyed cannot be used by the owner of the dominant tenement to pass to or from other land adjacent to or beyond that to which the easement is appurtenant"). An appurtenant easement may only be used in connection with the ownership of the so-called dominant estate; it cannot be used to benefit additional land.

Second, when an easement is an appurtenance, the use right is part of the underlying fee estate to which it attaches. The easement does not have independent existence; it cannot be severed from the ownership of the land. See Schwartzman, supra, quoting Black's Law Dictionary 509 (6th ed. 1990) (appurtenant easement "by definition, 'incapable of existence separate and apart from the particular land to which it is annexed'"). Appurtenant easements "may not be . . . converted to an easement in gross unless permitted by the terms of the instrument which created the easement". Id. In other words, the concepts of appurtenant easements and in gross easements are antithetical and inimical to each other; easements cannot be both appurtenant and in gross. Thus, for instance, a parking space easement that runs with a condominium unit cannot be leased out, without specific dispensation in the underlying conveyancing that created the easement. See id.

This facet of appurtenance-that an appurtenant easement must be used in connection with the ownership of the dominant estate-poses interesting questions of application. What happens when the dominant estate is undeveloped? When considering access easements to the property, there is nothing particularly extraordinary about the dominant estate being vacant-it is reasonably foreseeable that an owner would need to get to the raw land so that it could, someday, be developed. Appurtenance becomes more problematic for the easement holder if the easement is, for instance, a means of accessing a beach some distance away, and not the dominant estate itself. It is difficult to imagine that somebody would use beach access rights in connection with a vacant parcel. Under such circumstances, it would seem much more likely that the easement holder was using his use rights as if they were in gross-something that he cannot do with an appurtenant easement. See Schwartzman, supra. In such a case, the easement holder must show, as improbable as it is, that his use of the easement is somehow connected to his ownership of the vacant dominant estate for the use to be lawful. See Denardo, supra, at 363-364 ("judge credited Peter Scarlatos's use, from 1982 to 1985, of Beach Way to access the beach from his property even before he built a house on it") (emphasis added). These scenarios might at first blush seem rare, but they do come up frequently in the context of subdivisions that are laid out on the ocean or other littoral bodies.

Likewise, how does an appurtenant easement for beach access work when the dominant estate is leased out? Presumably, tenants occupying the dominant estate can use the easement. But, can the landlord use the easement, without, for instance, even visiting the dominant estate when he goes to the beach? The answer would appear to be no, based upon the principles set forth above. Questions like these, however, provide a sampling of the constant challenges we face as real estate practitioners, as we try to apply abstract legal principles to varying factual scenarios.

Written by Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C.

Copyright (c) 2011-2015 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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