You probably think there should be a difference between private roads and easements. Right?? After all, an easement is a section of property that allows people other than the landowner to access another piece of property. A private road leads people to a home or at least a piece of property off of the main road. So, why is it in the state of New Hampshire, almost all private roads are considered easements? And yet, every easement is not considered a private road? It’s a head-scratcher for sure!
Easements allow a small number of people to access a piece of land to gain access to another piece of land. Municipalities have no right regulating an easement. The easement is almost always attached to the deed, unless it is a long-standing implied easement. Those implied easements can be sketchy and the courts have had to make determinations on some of those in recent years.
Many statutes in the state of New Hampshire didn’t officially use the verbiage “private road” in the past. That is where the confusion began between easements and private roads. This became apparent with the passage of RSA 674:41 back in 1983. At the time, the statute prohibited an erection of a building unless the building could be accessed by a Class V road. However, the statute also stated that if a person were to do a little extra work to get the approval, they could build on a private road. The only problem was the statute did not define what a private road was.
The terminology from that statute has resulted in many court cases, including Russell Forest Management LLC v Town of Henniker 162 N.H. 141. In this case, the judges needed to determine if a specific easement was actually a private road. Since the statute mentioned above didn’t define what a private road was, and no other statutes had either, the judges ruled that this specific easement was not a private road.
In 2019, the court passed another statute regarding private roads. RSA 231:81-a states that when multiple residential owners benefit from a private road, each owner is required to contribute to the costs of maintaining the road. Yet, the statute still doesn’t provide a definition for a private road.
Hopefully, a future statute will determine the definition of a private road. That would at least end the confusion of which easements are actually private roads and which ones are not. Until then, at least we know that all private roads are almost always considered easements.
Are you having difficulty determining if an easement is actually a private road? Or do you simply have a question about private roads and easements? If you do, contact our office today to schedule a consultation.