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Home » Blog » A Few Things to Know About Easements in New Hampshire

A Few Things to Know About Easements in New Hampshire

In recent years, the New Hampshire Supreme Court has made decisions regarding numerous concerns about easements. There had been questions as to whether easements could be extended to adjoining properties. Those questions then turned into concerns over who was responsible for the actual maintenance of the easements. 

 

Easement Accessibility by Adjoining Properties

 

Normally, easements cannot be used for any non-dominant estate. However, the New Hampshire Supreme Court has ruled against that law in at least three separate cases. In the cases of Ettinger v. Pomeroy Ltd. Partnership, Soukup v. Brooks, and Heartz v. City of Concord, the court decided that those easements could include adjoining properties. This ruling was made regardless of the fact the adjoining properties had been purchased after the dominant property. 

 

The very first case to be presented to the court was Heartz v. City of Concord. The owner of the property wanted to construct a 19 car parking lot that would benefit an adjoining property. The court needed to determine the meaning of the original easement before it could then determine if this new lot was considered to be a reasonable use under the “rule of reason”. 

 

To determine the meaning of the easement, the court needed to read the easement documentation in hopes the intentions of the easement would be clear. As long as the documentation was written clearly and unambiguously, no extra evidence would be needed. 

 

Since the language used in this easement case was clear, the court could move to determine whether or not the easement could be used under the “rule of reason”. This meant the court needed to determine what advantages and disadvantages there would be in using the easement in this new scenario. 

 

As long as the use of the easement would not become unreasonably burdensome, it would be decided that the easement could be expanded and used for the adjoining property. The court never made it to this part of the hearing though, because the owner of the one property was never able to show that the new use of the easement would create an unreasonable burden. 

 

However, that case led the way for the next two cases to have their easements expanded at later dates. 

 

The Maintenance of Easements

 

There has always been concerns over who is responsible for the maintenance of easements in the state of New Hampshire. While it would be nice if all parties utilizing an easement would assist with the maintenance, not all parties are willing to do just that. 

 

It is due to that issue that certain cases concerning easement maintenance have been taken to the New Hampshire Supreme Court. In two cases, Village Green Condominium Association v. Hodges and Choquette & a.v. Roy, et. al., the court needed to clarify who was responsible for the maintenance of the easements in question. 

 

In the Village Green case, three different apartment complexes benefited from an easement that was owned by a condominium association. Both parties could utilize the easement, but only the condominium association was responsible for maintaining the easement. 

 

Over time, the easement required significant repairs. The apartment owner did not want to contribute to the repairs, so the condominium owner took them to court. The court’s ruling was based on, “upon the principle that, by using the easement, both the dominant and servient estates contribute to its wear and deterioration and, therefore, distribution of the burden of easement maintenance and repair between both estates is equitable and just”. 

 

It is important to note that the court did not address how much of the expense the apartment owner was responsible for. The two parties settled that issue on their own. 

 

In the Choquette case, there were two deeded easements, but no maintenance agreement on file. The owner of the neighboring lot did not want the easement user maintaining the easement across his own property and filed a petition accordingly. 

 

The court determined that the easement user had the common law right to maintain the easement since they were increasing the burden on it. This right would exist even if no other easement users performed maintenance on the easement. 

We know the laws will continue to change when it comes to easements in the state of New Hampshire. So, if you have questions about an easement that you have, or use, feel free to contact us today to schedule a consultation. We will share the updated law guidance with you and assist you in any other way we can.

Filed Under: General, Real Estate Law

The above information is for informational purposes only and does not constitute legal advice.

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