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LITIGATION 2: Can you make repairs and improvements to an easement?

In April 2016, plaintiff again moved before the trial court to hold the defendants in contempt for failing to comply with the consent judgment by removing the barriers. Plaintiff also requested an order permitting him to alter the slope of Parcel B to enable him to launch a boat using a boat trailer. At the hearing on the motion, plaintiff conceded that the slope of the land was the same as it had been when the consent judgment was entered, but contended that it is virtually impossible to use a trailer to launch a boat from Parcel B given the steep incline of the bank. At the conclusion of the hearing on the motion, the trial court denied plaintiff’s request to grade the easement.

This case involves the question whether plaintiff’s proposed alterations to Parcel B fall within the scope of plaintiff’s easement. Plaintiff argues that the trial court erred by denying his request to grade Parcel B because, in its current condition, it is impossible for him to launch a boat with a boat trailer on Parcel B, which is a permitted use of the easement.

The easement in this case was created by a consent judgment, which is the product of an agreement between the parties. This Court interprets judgments entered by agreement of the parties in the same manner as contracts. Although they apply contract principles to determine the scope of the easement created by the consent judgment, they consider the law related to easements to determine the scope of plaintiff’s rights to enjoyment of the easement created by the consent judgment.

An easement is a limited right to use the land burdened by the easement, rather than a right to occupy and possess the land, and generally is limited to a specific purpose. The language of the instrument that granted the easement determines the scope of the easement holder’s rights. Where the rights of an easement are conveyed by grant, neither party can alter the easement without the other party’s consent.

A party who enjoys an easement is entitled to maintain it so that it is capable of the use for which it was given.  The making of repairs and improvements necessary to the effective enjoyment of an easement is incidental to and part of the easement. Improvements, however, receive closer scrutiny than repairs.  In this case, Parcel B was steeply sloped and sandy at the time the easement was granted, and it is unlikely that a person at that time could have launched a watercraft by backing a boat trailer itself into the water. Grading the parcel to alter the slope sufficiently to launch a boat from a boat trailer, therefore, would constitute an improvement to the easement, not simply a repair. In addition, the parties agree that the slope of Parcel B is unchanged from the time that the litigation began, and that neither the settlement agreement on the record nor the consent judgment suggests changing the slope of Parcel B.

Because this issue presented itself for the first time long after entry of the consent judgment, the court concluded that changing the slope of Parcel B was not contemplated by the parties and is outside the scope of the easement.

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If you are facing a residential or commercial real estate, seek the advice of an experienced and skilled real estate litigation attorney at Aldrich Legal Services in Plymouth.

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