DIANA RANDALL v. STEVEN J. NADIS

INTRODUCTION

At issue in this case is whether the Plaintiff, in petitioning the court to relocate an easement encumbering registered land, may rely upon the Supreme Judicial Court's holding in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 88 (2004) that "the owner of a servient estate may change the location of an easement without the consent of the easement holder." Plaintiff Diana Randall is the registered owner of a parcel of land shown as Lot A on Land Court Plan 18211-B. Lot A is subject to the reservation of an eight-foot-wide right of way for the benefit of the owner of adjoining Lot B as shown on said Land Court Plan. She has now filed an "S-Petition," [Note 1] requesting an amendment to her Certificate of Title. [Note 2] Specifically, Randall petitions to alter the location of the right of way shown on Land Court Plan 18211-B and described on her Certificate of Title, in order to accommodate a proposed reconstruction of a covered porch/entry addition on her dwelling.

Steven J. Nadis, the registered owner of Lot B, responded to Randall's Petition by opposing the proposed amendment and counterclaiming for court orders requiring Randall to remove certain obstacles from the existing right of way and to restore the right of way surface. On October 27, 2010, Nadis filed a Motion for Summary Judgment dismissing the S-Petition and granting injunctive relief under the counterclaim. Nadis seeks a ruling that Randall may not relocate the right of way without his consent because that would impermissibly alter title to registered land in contravention of the Massachusetts Land Registration Act. He argues that the holding in M.P.M. Builders is not applicable to registered land. Alternatively, Nadis contends that, if M.P.M. Builders were applicable to registered land, Randall is nevertheless barred by equitable principles from relocating the easement. He further contends that the proposed relocation cannot, as a matter of law, satisfy the criteria for relocation set forth in M.P.M. Builders because Randall's proposed relocation would impede access to his property and lessen the utility of the way in providing a direct access route from the street to the principal entry for the dwelling on Lot B.

The Plaintiff has opposed the Motion for Summary Judgment, arguing that the rule articulated in M.P.M. Builders is not limited to unregistered land, and that she is therefore entitled to entry of summary judgment in her favor that she may alter the location of the subject way without the consent of the Defendant/easement holder, provided the altered location conforms to the criteria set out in the M.P.M. Builders decision. Randall further asserts that her proposed relocation does meet those criteria, and that her petition is not barred by "unclean hands," although she concedes that disputed material facts may preclude summary judgment on these latter two issues. A hearing on the Defendant's Motion for Summary Judgment was conducted on January 25, 2011.

For the reasons discussed below, I conclude that the Plaintiff is entitled to entry of partial summary judgment in her favor that the M.P.M. Builders holding is not limited to unregistered land. I further conclude, however, that the existence of disputed material facts preclude entry of summary judgment on both the ultimate question of whether the Plaintiff is entitled to relocate the right of way in the manner she has proposed in her S-Petition (i.e., whether the relocation meets the Restatement criteria adopted in M.P.M. Builders), and on the Defendant's Counterclaim.

UNDISPUTED MATERIAL FACTS

I find that the following material facts are undisputed:

1.Plan No. 18211-B is entitled "Subdivision Plan of Land in Cambridge, Edward Smith, Surveyor, February 14, 1950" (the "Plan"), and is registered at Book 462, Page 469. The Plan shows the division of land registered in Case No. 18211 into two new lots - Lot A and Lot B, each containing an existing structure.

2.Plaintiff Diana Randall is the registered owner of the parcel of land shown as Lot A on the Plan.

3.Steven J. Nadis is the registered owner of the parcel of land shown as Lot B on the Plan.

4.Lot A was first conveyed into separate ownership from Lot B on March 10, 1950. That conveyance is reflected on Transfer Certificate of Title No. 69286 for Lot A, issued on March 10, 1950, and on the deed dated March 10, 1950 and registered as Document No. 238066.

The first Transfer Certificate of Title for Lot A recites on it face that [t]he above described land is subject to the reservation for the benefit of the owner of Lot B on [the Plan], for right to use the way as shown on said plan, set forth in Document 238066.

The referenced deed for Lot A recites that it is

[r]eserving to the grantor as owner of Lot B on [the Plan] for the use of said Lot B the right to use for foot and vehicular traffic the 8 foot passageway running from Franklin Street as shown on said plan.

Neither said Certificate of Title nor said deed contains language expressly prohibiting relocation of the described way.

6.Lot B was first conveyed out in October 1950. That conveyance is reflected on Transfer Certificate of Title No. 71154 for Lot B, issued on October 4, 1950, and in the deed dated October 2, 1950 and registered as Document No. 244347.

The first Transfer Certificate of Title for Lot B recites on its face that

[t]here is appurtenant to the above described land the right to use the way shown on [the Plan] in common with others entitled thereto for all purposes for which rights of way are commonly used in the City of Cambridge, set forth in document 244347.

The referenced deed for lot B recites that the property is conveyed

[t]ogether with the right to use the right of way eight (8) feet in width leading from Franklin Street as shown on [the Plan], said right of way to be used in common with the owners and occupants of said Lots A and B for all purposes for which rights of way are commonly used in the City of Cambridge.

Neither said Certificate of Title nor said deed contains language expressly prohibiting relocation of the described way.

7.Consistent with the first Transfer Certificate of Title for Lot A, [Note 3] Randall's deed to Lot A,3 dated September 29, 2008, and registered as Document No. 01483740, recites that

[t]he above described land is subject to the reservation for the benefit of the owner of Lot B on [the Plan], for right to use the way as shown on said plan, set forth in Document 238066.

8.Consistent with the first Transfer Certificate of Title for Lot B, Nadis' Certificate of Title for Lot B recites on its face that

[t]here is appurtenant to the above described land the right to use the way shown on [the Plan] in common with others entitled thereto for all purposes for which rights of way are commonly used in the City of Cambridge, set forth in Document 244347.

9.A way is shown on the Plan as extending southwesterly across Lot A to Lot B, in a straight line, from Franklin Street. The first thirty (30) feet of the way is shown as being eight (8) feet in width, running parallel to, and approximately two (2) feet to the northwest of the structure on Lot A. The way is then shown as continuing in a straight line for an additional fifteen (15) feet abutting Lot B, but reduced in width to two (2) feet.

10.Randall proposes to shift the eight-foot wide section of the way approximately four (4) feet to the northwest, in order to accommodate the addition of a porch entry on the northwest side of her dwelling. [Note 4]

DISCUSSION

In M.P.M. Builders, the Supreme Judicial Court decided the question of whether the owner of a servient estate may change the location of an easement without the consent of the easement holder. [Note 5] In holding that the servient estate owner may do so upon satisfaction of certain criteria, the Supreme Judicial Court announced its adoption of the rule expressed in Section 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000), which provides as follows:

Unless expressly denied by the terms of an easement, as defined in § 1.2, the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do 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.

M.P.M. Builders, 442 Mass. at 90.

Nadis has moved for summary judgment that Randall may not unilaterally alter the location of the way burdening her registered land in reliance on the M.P.M. Builders decision. He asks this court to read M.P.M. Builders narrowly so as to limit the holding to unregistered land only, on the grounds that said case involved only unregistered land, and that there are no appellate decisions applying M.P.M. Builders to registered land. Nadis further argues that extending M.P.M. Builders to registered land would be contrary to the Registration Statute [Note 6] and its purposes in providing certainty of title.

I do not find the Defendant's arguments persuasive. There is nothing in the M.P.M. Builders decision which either expressly or impliedly limits the holding to unregistered land. Moreover, I find no inconsistency between the Registration Statute and the application of the rule in M.P.M. Builders to registered land.

The Rule Articulated in M.P.M. Builders Makes No Exception for Registered Land

Although the easement relocation addressed in M.P.M. Builders involved only unregistered land, the Supreme Judicial Court notably did not carve out any exception for registered land when it adopted Section 4.8 (3) of the Restatement "as the law of the Commonwealth." See M.P.M. Builders, 442 Mass. at 91. Nor should such an exception be implied by the Registration Statute's purpose in providing "a means by which title to land may be readily and reliably ascertained." See Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34 , 45 (1980). Indeed, the M.P.M. Builders Court specifically recognized that adoption of the Section 4.8 (3) rule would not place property interests in an uncertain status, observing that "a relocated easement which continues to serve its intended purpose is not any less certain as a property interest." M.P.M. Builders, 442 Mass. at 93. Importantly, the Court also stated that "[a] rule that permits the easement holder to prevent any reasonable changes in the location of an easement would render an access easement virtually a possessory interest rather than what it is, merely a right of way." Id. at 93. I can find no basis for concluding that the owner of servient registered land has fewer rights than an owner of servient unregistered land, with respect to access changes which meet the Restatement criteria adopted in M.P.M. Builders.

The Rule in M.P.M. Builders is Consistent with the Registration Statute

Nadis next argues that the Registration Statute itself prohibits a servient estate owner from relocating an easement described in a certificate of title and shown on a registered plan, without the consent of the easement holder. In making this argument, however, Nadis misconstrues the Registration Statute. In fact, the Registration Statute expressly provides the circumstances and processes under which the owner of registered land may initiate and obtain approval for the alteration or amendment of certificates of title and registered plans subsequent to the judgment of registration.

Pertinent to the instant case, Section 114 of Chapter 185 allows for the alteration or amendment of the registration book after entry of a certificate of title, either on the basis of one of the specific grounds enumerated in that section, "or upon any other reasonable ground" as long as the relief may be given without opening the original registration decree and without impairing the title or interest of a purchaser holding a certificate of title for value and in good faith, unless such person consents. St. George's Ebenezer Primitive Methodist Church of Methuen v. Primitive Methodist Church of the United States of America, Eastern Conference, 315 Mass. 202 (1943); G.L. c. 185, § 114. [Note 7]

Here, the way over Lot A was created when the Plan was registered several years after the registration judgment was entered in Case No. 18211. A change in location of the way shown on that Plan would, therefore, not involve opening the original registration decree. Moreover, Nadis' consent is not necessarily required for the change in location proposed in Randall's petition. The consent required under Section 114 applies only to a situation where granting the requested relief would impair the title or interest of one or more third parties. As discussed above, however, the Supreme Judicial Court has concluded that reasonable relocation of a right of way easement in accordance with the Restatement rule would not affect an easement holder's nonpossessory interest in real estate. See M.P.M. Builders, 442 Mass. at 92-93. Nothing about the fact that land is registered, as opposed to unregistered, requires a different analysis.

Absent an express prohibition against relocation, it is only where the relocation would fundamentally alter the easement right by impeding its utility, increasing the burdens on the easement holder, or frustrating the purpose of the right of way, that the easement holder's interest might be impaired. And when there is such an express prohibition, unilateral relocation would not be permissible, either under the M.P.M. Builders' holding or under Section 114 of the Registration Statute. But here, none of the documents or instruments creating the way contains language expressly prohibiting relocation of the way. [Note 8] Therefore, according to M.P.M. Builders, as long as the criteria for relocation set forth in Section 4.8(3) of the Restatement can be met, Nadis' property interest in the way would not be impaired and his consent to the relocation of the way would not be required under the Registration Statute. The declaratory judgment process in M.P.M. Builders for determining whether, in a particular instance, the Restatement criteria are met, is not at all inconsistent with the G.L. c. 185, § 114 process for amending documents and plans in the registration system.

Partial Summary Judgment

Summary judgment is intended as "a device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved." Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983). When appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c). Summary Judgment may be rendered "upon all or any part" of a claim. Mass. R. Civ. P. 56(a) and (b).

In the instant case, the question of whether the servient owner of registered land, in petitioning the court to relocate an easement without the consent of the easement holder, may properly rely upon the rule announced in M.P.M. Builders, involves only a question of law. On that question of law, partial summary judgment shall enter in the Plaintiff's favor that M.P.M. Builders is not limited to unregistered land.

Accordingly, Randall may, in reliance on the M.P.M. Builders decision, obtain a court order under G.L. c. 185, §§ 114 and 115, modifying the location of the way from that shown on the Plan, without Nadis' consent, provided the court finds that the proposed relocation satisfies the three criteria set forth in Section 4.8(3) of the Restatement and adopted in M.P.M. Builders. See 442 Mass. at 94. If Randall satisfies this court that the proposed relocation does not significantly lessen the utility of the easement, increase the burdens on the Lot B owner's use and enjoyment of the easement, or frustrate the purpose for which the easement was created, Randall would then be entitled to proceed with the steps necessary to have the certificates of title for Lot A and Lot B modified to reflect a relocation of the way. [Note 9] I find, however, that disputed material facts preclude summary judgment as to whether the proposed relocation described in the Randall S-Petition satisfies the three Restatement criteria, whether relocation is barred by equitable principles, and whether Randall has installed or placed certain objects within the existing right of way which impermissibly interfere with Nadis' use of the way.

No Judgment shall issue at this time.

SO ORDERED.

By the court (Cutler, J.)