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Don’t mess-up the tax exemption for municipal real estate.
 New Hampshire exempts real estate owned by municipalities from the state real estate tax except where the property is used or occupied by a non-exempt party under a lease or other agreement requiring that party to pay the taxes. RSA 72:23. But what happens if that party sublicenses the property to a third party, and the sublicense agreement is silent on the issue of taxes? In Segtel, Inc. v. City of Nashua (June 9, 2017), Fairpoint had a license from Nashua to place poles and conduits over city-owned rights of way. The license agreement included a requirement that Fairpoint pay property taxes pursuant to RSA 72:23(I). Good so far. Fairpoint then entered into a pole attachment agreement with Segtel, which operates a fiber optic cable network. The pole attachment agreement was silent on the issue of property taxes. The city sent tax bills to Segtel, and Segtel objected, claiming the exception to the real estate tax exemption did not apply to them. The supreme court agreed with Segtel. To be liable to pay real estate taxes, i.e., to be subject to the “exception to the exemption,” a party needs to both use or occupy the real estate in question, and be subject to an agreement obligating it to pay the taxes. Although Segtel “used or occupied” the real estate in question, it was not subject to an agreement requiring it to pay taxes; therefore, it was not liable to the city for the taxes.
So the lesson for anyone licensing municipal rights of way is to make sure any sublicense agreement requires the sub-licensee to pay the property tax.
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Notifying tenant of default – being too nice can be fatal.
In notifying a tenant of a default under the lease, the landlord needs to clearly state the tenant is in default and that the consequences of the default include eviction, assuming the landlord intends to then pursue an eviction. Being “too nice” in the letter can be fatal. Here, the landlord’s letter notified the tenant the lease did not give the tenant the right to provide live music to patrons, and then it stated “you can proceed with the music this month, however no later until you have a conversation with [the landlord].” The court found this letter was insufficient to then initial an eviction action. Lesson for landlords: when sending default notices, make sure they contain “sufficient detail to establish that the tenants were advised of the specific lease obligation that they were breaching and how they were breaching it in a manner that would put them on notice that their failure to correct the breach would subject them to eviction.” 102 Plaza, Inc. v. Jared Stevens et al. (July 12, 2017 3JX – does not create precedence).
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Amazing but true –
 We all know using someone else’s land without the consent of the owner may be a trespass, giving the owner the right to bring an action to oust the trespasser. But how about the holder of an easement? Can someone with an easement over someone else’s land bring an action to prevent another person from passing over the same land? In Carlson, Trustee v. Latvian Lutheran Exile Church of Boston and Vicinity Patrons, Inc. (Sept. 21, 2017), the New Hampshire Supreme Court looked at this issue from a few different legal theories, but the bottom line came out pretty much the same: the holder of a non-exclusive easement may oust a third party provided the third party’s use, or proposed use, interferes with the easement holder’s use and enjoyment of their easement. Also, the easement in question was not exclusive, meaning the owner of the land reserved the right to grant other people rights to use the land. Had the easement been exclusive, then the rights of the easement holder perhaps would include the right to oust a third party even where the third party is not interfering with the easement holder’s use and enjoyment of their easement.
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