An easement is a piece of land that people, other than the property owner, have permission to use to get to another piece of property. Most of the time, easements are used to reach a beach area or a piece of property that doesn’t have a road or driveway leading to it. Easements are usually created and listed on the deed of a property. However, it is not always clear who is in charge of maintaining easements or repairing those easements. There is even more confusion when an extension of an easement is needed on a piece of property. We are going to try to clear up some of this confusion today. This will ensure you can safely use the easements you have access to. Or you can make sure the easements on your property are safe for those who are allowed to utilize them.
Maintaining and Repairing an Easement
Most of the time, the owner of the property where the easement is located is in charge of maintaining and repairing the easement. However, in the case of Village Green Condominium Association v. Hodges, as well as Choquette & a.v. Roy, et.al, it was determined by the New Hampshire Supreme Court that anyone using an easement has the right, and can even be obligated, to maintain and repair it.
Let’s get into more detail with both cases. In the Village Green case, the tenants of three apartment complexes were allowed to access an easement on property that was owned by a condominium association. The owner of the apartment complexes was allowed to maintain or repair the easement at any time. But they felt they were not obligated to do so.
This may not have seemed to be a big deal for a while. However, when the easement was in dire need of major repairs, it was not surprising that the condominium owner asked for the apartment complex owner to pitch in to cover the costs. Of course, the apartment complex owner did not want to share the costs, so the case went to court.
The New Hampshire Supreme Court ruling was as follows, “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.”.
So, yes, the apartment owner was obligated to cover some of the maintenance and repair costs of the easement.
The Choquette case was the complete opposite. In this case, the user of the easement wanted to maintain and repair the easement. However, the owner of the property did not want the user to do any type of work.
The ruling, in this case, was that because the user of the easement knew they were increasing the burden on the easement, they had the common law right to maintain it. The ruling may have been different if there was an agreement on file stating otherwise.
Extending an Easement
When it comes to extending an easement on a property, most of the time, it cannot be done. This is especially true when an extension is requested after a piece of property has been purchased.
The New Hampshire Supreme Court has ruled in favor of extending easements to non-dominant estates though. This has been seen in cases like Ettinger v. Pomeroy Ltd. Partnership and Soukop v. Brooks. The Soukop case had the court stating that access easements can be extended for all purposes. In this case, an access easement could be created to a new lot in addition to the original dominant lot.
In the Ettinger case, the court ruled that certain easements can be extended, if the circumstances are right. The addition of land to a dominant estate is not a guarantee though that an extension will be allowed.
It can get confusing when it comes to maintaining, repairing, and extending easements. If you are dealing with any of these easement issues, we recommend contacting our office today for a consultation.