The Estoppel-By-Deed Doctrine
The doctrine of estoppel-by-deed prevents sellers of real estate from later denying the existence and use of certain private easements referenced in a deed. The New Hampshire Supreme Court reiterated this doctrine earlier this year in Loeffler v. Bernier (March 31, 2020).
Deeds transferring real property include legal descriptions so all parties are clear on the boundaries of the conveyed property. These descriptions typically contain metes and bounds descriptions, references to lot numbers on plans, or some combination of the two. Metes and bounds descriptions provide instructions for walking the boundary of a property using only low-tech tools, like a compass and tape measure.
When a deed’s legal description defines the property’s boundaries with reference to a private right-of-way, and the grantor owns the way, the conveyance may create an implied easement allowing the grantee to use the private way. This doctrine prevents (or “estops”) the original grantor (and those in privity to the grantor, such as future owners of the private way) from later denying the existence of the easement. 700 Lake Ave. Realty v. Dolleman, 121 N.H. 619, 623 (1981).
Application of the doctrine may create unintended consequences. This is because owners of these types of easements may use the private right-of-way even if:
- The deed did not explicitly grant any right to use the private way;
- The original grantor still solely owns the private way;
- The grantor did not intend to grant an easement;
- The grantee had no reasonable expectation they would receive an easement; and
- The easement is not necessary to access the property.
Grantor/developers should understand the potential consequences of a legal description referencing a private right-of-way. The doctrine of estoppel-by-deed may unintentionally transfer rights allowing a grantee to drive across property of the grantor (or their assigns), even if the grantee has access to a public highway. Application of the doctrine may be prevented by the inclusion of language making clear the intent not to create these implied rights.
Paul J. Alfano
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