BRAMMER BIO MA LLC v. BOSTON PROPERTIES LIMITED PARTNERSHIP (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Brammer Bio MA, LLC (Brammer), appeals from an order denying its request for a preliminary injunction to temporarily enjoin the construction of a new high-rise building that extends onto property subleased to Brammer at 250 Binney Street in Cambridge. We affirm.

Background. The following facts, none of which are challenged on appeal, are taken from the order denying the request for a preliminary injunction, supplemented by undisputed documentary evidence. See Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 735 n.5 (2008).

1. The parties and property. This dispute arises from the development of property within an approximately 9.7-acre area referred to as the “Parcel 2 Development Area.” The various pieces of property that comprise the Parcel 2 Development Area are owned by different entities. As pertinent here, 250 Binney Street is owned by one of the defendants, the trustees of Fourteen Cambridge Center Trust (trust), the sole beneficiary of which is defendant Boston Properties Limited Partnership (BPLP). Brammer subleases 250 Binney Street pursuant to an agreement with Biogen MA Inc. (Biogen), the prior tenant. An adjacent piece of property, 290 Binney Street, is owned by defendant 290 Binney LLC and currently is being developed by defendant Turner Construction Company.

2. The leases and easements. In 1982, the trust agreed to lease 250 Binney Street to the original tenant, a predecessor of Biogen.² Section 7.2 of this prime lease recognized that the trust or its affiliates may “develop and construct other buildings and facilities on individual parcels of land within the Parcel 2 Development Area” and that, as part of that development, the trust or its affiliates may “construct internal roadways, sidewalks and pedestrian walks.” The trust reserved the right “to construct and relocate such temporary and permanent internal roadways, sidewalks and pedestrian walks” and “to use portions of [250 Binney Street] for such roadways, sidewalks and pedestrian walks provided such use does not unreasonably affect [Biogen's] use of [250 Binney Street].” Biogen was given the right, in common with others, “to use the internal roadways, sidewalks and pedestrian walks.”

Years later, on March 19, 1990, the then-fee owners of property comprising the Parcel 2 Development Area entered into a master easement agreement to facilitate the area's development. Section II.8(c) gave current and future owners a “co-exclusive right and easement” to use a specified part of 250 Binney Street “for the purpose of providing vehicular access.” An internal roadway, known as East Service Drive, was within this vehicular access easement and ran along the property line with 290 Binney Street. Section I of the master easement agreement stated that the “nature and duration of the easements and rights granted herein” could be “terminated or modified as hereinafter provided”: “any of the easements and rights created hereby may be terminated or altered at any time by the agreement of all of the then fee owners and mortgagees.”

On March 28, 1990, Biogen executed a consent and subordination, agreeing that its rights under the prime lease were subordinate “to the easements, rights and obligations” that were created under the master easement agreement. Biogen also agreed that its lease would be subordinate “to any easements or rights ․ heretofore or hereafter granted by the [t]rust pursuant to the terms and conditions of the [master easement agreement].”

On November 8, 2016, Biogen agreed to sublease 250 Binney Street to Brammer. The sublease provided that Brammer had the right “to use access ways, drives, entrances, exits and easements,” including East Service Drive, which provided access to a loading dock. The sublease also provided that it was “subject and subordinate to the [p]rime [l]ease and to all matters to which the [p]rime [l]ease is or shall be subject and subordinate.”

The owners of the property within the Parcel 2 Development Area have executed five amendments to the master easement agreement since 1990. A February 7, 2024 restated easement agreement altered the vehicular access easement where East Service Drive was located by converting part of it to a 290 Binney building easement. The 290 Binney building easement is approximately eight feet wide and, as with East Service Drive, runs along the property line with 290 Binney Street. The 290 Binney building easement granted to 290 Binney LLC “the perpetual and exclusive right and easement to construct, reconstruct, support, maintain, repair, and replace” all portions of a high-rise building within the 290 Binney building easement. In short, the 290 Binney building easement was intended to facilitate a construction project whereby a highrise being built on 290 Binney Street would extend over the property line onto the property leased by Brammer, in the area where East Service Drive had been located,³ without Brammer's consent. As a result, East Service Drive has been temporarily reconfigured during construction of the high-rise building and will be permanently reconfigured once construction is complete, again without Brammer's consent.

The same day that the owners of the property within the Parcel 2 Development Area executed the 2024 restatement easement agreement (February 7, 2024), Biogen assigned all of its “obligations, covenants, right, title and interest in, to and under” the prime lease to the trust.⁴ As assignee of the prime lease, the trust then executed a confirmatory consent and subordination in which it merely confirmed that, under the terms of the original consent and subordination, the prime lease was subordinate to the restatement easement agreement.

3. Lawsuit. On April 26, 2024, Brammer brought suit, claiming that the 2024 restated easement agreement allowing 290 Binney LLC to construct a permanent structure on 250 Binney Street was invalid. Brammer asserted claims to quiet title; for breach of the sublease, including the covenant of quiet enjoyment; for trespass; and for nuisance.

Simultaneously with the filing of its complaint, Brammer also filed a motion for a preliminary injunction, arguing that the construction of the high-rise building on a portion of 250 Binney Street constituted a trespass that interfered with Brammer's occupancy and use of 250 Binney Street. A judge of the Superior Court denied the motion. As pertinent here, the judge concluded that Brammer was unlikely to prove a trespass where its sublease was subordinate to the terms of the prime lease, to the master easement agreement, and to the 2024 restated easement agreement. Brammer now appeals from the denial of its motion for a preliminary injunction pursuant to G. L. c. 231, § 118, second par.

Discussion.⁵ “We review the grant or denial of a preliminary injunction to determine whether the judge abused his discretion, that is, whether the judge applied proper legal standards and whether there was reasonable support for his evaluation of factual questions.” Fremont Inv. & Loan, 452 Mass. at 741, citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980). We look to the same factors as the motion judge: whether the moving party has shown a likelihood of success on the merits, whether irreparable harm will result from the denial of the preliminary injunction, and whether the risk of irreparable harm outweighs the risk of harm to the other party. See King v. Shank, 92 Mass. App. Ct. 837, 838-839 (2018). A showing of likelihood of success on the merits is required; without it the other factors become “matters of idle curiosity” (citation omitted). Lieber v. President & Fellows of Harvard College, 488 Mass. 816, 822 (2022).⁶

While the standard of review is “framed in terms of abuse of discretion, ․ [e]valuation of [the relevant] factors turns on mixed questions of fact and law” (quotation and citation omitted). Packaging Indus. Group, Inc., 380 Mass. at 615-616. “[C]onclusions of law are subject to broad review and will be reversed if incorrect” (citation omitted). Id. at 616. Moreover, “if the order was predicated solely on documentary evidence we may draw our own conclusions from the record.” Id.

With respect to likelihood of success on the merits, Brammer argues that the judge erred in concluding that the 2024 restated easement agreement was valid. Specifically, Brammer argues that the 2024 restated easement agreement impermissibly created a whole new easement -- versus amending a prior easement -- that unreasonably affected Brammer's use of 250 Binney Street. We are not persuaded.

The various documents here included broad language allowing the trust to construct, relocate, modify, and alter easements to facilitate the development of the Parcel 2 Development Area. The prime lease gave the trust the right to use portions of 250 Binney Street to construct and relocate roadways, sidewalks, and pedestrian paths.⁷ The consent and subordination agreement and master easement agreement, both executed in 1990, expanded the trust's rights further. The consent and subordination agreement provided that the prime lease was subordinate “to any easements or rights ․ heretofore or hereafter granted by the [t]rust pursuant to the terms and conditions of the [master easement agreement]” (emphasis added). In turn, the master easement agreement (1) established several different types of easements, (2) contemplated that the “nature” of those easements could be “modified,” and (3) provided that “any of the easements and rights created hereby may be terminated or altered at any time.” The 2024 restated easement agreement did just that: it altered the nature of the vehicular access easement by converting an approximately eight-foot-wide part of it to the 290 Binney building easement. Accordingly, based solely on the evidence submitted at the preliminary injunction stage, we discern no legal error in the judge's interpretation of the documentary evidence.⁸ See Fremont Inv. & Loan, 452 Mass. at 735 n.5.

To the extent Brammer's argument rests on the idea that the encroachment of the high-rise building, once fully constructed, onto 250 Binney Street will unreasonably affect Brammer's use of the property, the argument is unavailing. Brammer's motion for a preliminary injunction was based on the broader argument that the trust could not convert a vehicular access easement to a building easement; focused on the harm that the ongoing construction was causing; and made only passing reference to the idea that the building itself would impede Brammer's access. However, we need not decide whether this was sufficient to preserve the argument, see Flynn v. Boston, 59 Mass. App. Ct. 490, 496 (2003) (argument not raised below is waived), because the judge credited evidence that East Service Drive would be reconfigured to meet Brammer's needs. Our review of the evidence submitted at the preliminary injunction stage gives us no reason to disturb this finding.⁹

Given our conclusion regarding likelihood of success on the merits, we do not reach Brammer's arguments regarding the harms. See Lieber, 488 Mass. at 822.

Order denying motion for preliminary injunction affirmed.

FOOTNOTES

2.   For ease of reference, and where the distinction between the original tenant and Biogen is immaterial to our discussion, we refer to them both interchangeably as Biogen.

3.   The high-rise building will extend approximately five feet over the property line.

4.   Again, the trust is the owner of 250 Binney Street, which Biogen leased beginning in 1982 and subleased to Brammer beginning in 2016.

5.   The defendants argue that this matter is moot, as Brammer ceased operating at 250 Binney Street while this appeal was pending. We disagree that the matter is moot. As noted by Brammer, the lease term has not concluded, and Brammer retains rights under that lease, including the right to sublease 250 Binney Street to another tenant.

6.   The judge here noted that Brammer did not need to show irreparable harm where real property was involved. We do not reach the issue, as we conclude that the judge did not abuse his discretion in concluding that Brammer had not shown likelihood of success on the merits. See Lieber, 488 Mass. at 822.

7.   Brammer suggests that the trust's right to use portions of 250 Binney Street was limited by Brammer's right of quiet enjoyment, which Brammer argues was violated here. We do not address the argument where Brammer did not seek a preliminary injunction on the basis that the trust had committed a breach of the covenant of quiet enjoyment. See Simmons v. Chace, 105 Mass. App. Ct. 550, 556 (2025) (claims not raised below are waived on appeal).

8.   Brammer contends that the trust asked Brammer to consent to the conveyance of the northern portion of 250 Binney Street to 290 Binney LLC and that, when Brammer refused, the trust executed the 2024 restated easement agreement to accomplish the same goal. However, as discussed, Brammer has not persuasively explained why the trust did not retain the right to do so under the various documents here.

9.   We also are not persuaded by Brammer's argument that the judge erroneously concluded that Brammer had to prove exclusive possession to prove trespass. The judge discussed exclusive possession in response to Brammer's argument that it had “exclusive possessory rights” to 250 Binney Street, “including both the land and the commercial building.” However, the linchpin of the judge's analysis was that the trust had the right to alter the vehicular access easement.