1) Defining the Easement
Easement holders have the right to access or use another’s property for the purpose of the easement. These easement rights are considered non-possessory, as the ownership interest (referred to as the “fee title”) is still retained by the property owner. The property benefitting from the use of the easement is referred to as the “dominant estate”. This is because it has a limited ability to use the property without interference by the underlying landowner. The actual owner of the property burdened by the easement is referred to as the “servient estate.”
All easements in New Hampshire are described as either:
- Easements appurtenant, or
- Easements in gross.
2) Easements Appurtenant
An easement is appurtenant because it benefits an adjoining piece of property (the dominant estate). It also “is incapable of existence separate and apart from” the benefitted parcel. Arcidi v. Town of Rye, 150 N.H. 694, 698 (2004). Unless the easement agreement states otherwise, appurtenant easements automatically will transfer and remain valid after a transfer in ownership of the servient estate or dominant estate. In legalese – when the easement applies regardless of the current owner, it “runs with the land.”
Examples include access easements and driveway easements. Landowners commonly rely on appurtenant easements to build driveways across a neighbor’s property to access a public highway. If the dominant estate is sold, the new owner also will have the right to use the driveway within the appurtenant easement.
When transferring property benefitted or burdened by an appurtenant easement, the easement will remain valid even if the deed does not mention the easement at all. N.H. RSA 477:26. However, it is a good idea to reference the easement in the deed transferring either the servient or dominant estate to avoid confusion and the potential for unnecessary litigation.
3) Easements in Gross
Easements in gross benefit a specific individual (or corporate or government entity) personally. This is in contrast to easements appurtenant, which must benefit a dominant estate (the current landowner of the neighboring property that uses the easement). There is still a servient estate but not a dominant estate.
For example, private utility companies often use easements in gross to install and connect cables and electrical wires to residences and businesses.
Unless the recorded instrument that created the easement states otherwise, easements in gross typically do not transfer with title like easements appurtenant. In some states, easements in gross that are commercial in nature do run with the land. This argument has been attempted a few times in New Hampshire administrative proceedings. It has not yet been recognized by the state courts.
Sometimes there is confusion between easements in gross and licenses to use another’s property; however, unlike easements, licenses are freely revocable, nontransferable, and do not need to be in writing.