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Bar News - May 17, 2017

Real Property Law: Putting the ‘Ease’ in Easements: More than Just a Deeded Right


Easements can be created by deed, implication, necessity, and prescription. They can make a tremendous difference in the value of real estate – by preventing a property from being landlocked or by providing access to a lake, for example. Disputes over easements often lead to litigation.

Easement by Deed

Easements by deed can be vague. When an easement is defined by deed only as a “right to pass and repass over the land of said grantor,” where is it located? The New Hampshire Supreme Court answered that question in Duxbury–Fox v. Shakhnovich (2009) based on an analysis that included past use, any evidence of a mutual agreement to move the right of way, convenience to both parties, and equity. In that case, because passage over the wooded land had been very difficult, and because boats were used more often than the land route, the court held that the right of way included boat access, even though the deed did not mention boats.

The court further held that easements by deed can be improved, for example, by adding a gravel driveway, parking area and dock, if the nature of the use did not substantially change. Again, that right to improve does not need to be explicitly stated in the deed.

By statute, an easement by deed does not need to be mentioned in the current deed. RSA 477:26 states: “In a conveyance of real estate or any interest therein, all rights, easements, privileges and appurtenances belonging to the granted estate or interest shall be deemed to be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary in order for their inclusion to enumerate or mention them either generally or specifically.”

Easements by Implication

Even if no easement is mentioned in prior deeds, one could exist by implication. According to the New Hampshire Supreme Court in Choquette v. Roy (2015), “[t]he question is whether the parties could reasonably have thought that the right was not granted.” There, the court affirmed a holding that there was an easement by implication over Sugar Shack Right of Way, relying in part on the fact that “at the time of conveyance, the only road in existence for th[e] subdivision was ‘Sugar Shack, and that the only access to Roy Boulevard, and therefore to the 103-acre parcel, is over Sugar Shack R.O.W. to Hall Stream Road.” A reasonable person could have concluded that the right of way was “permanent and obvious” and “reasonably necessary for the fair enjoyment of the” dominant estate, according to the court.

Easements by Necessity

In New Hampshire, easements by necessity are very similar to easements by implication. “Easements by necessity arise from the implied intent of the parties,” according to the New Hampshire Supreme Court in Bradley v. Patterson (1981). The court further explained that “[n]ecessity alone is insufficient to create an easement.” Rather, “the surrounding circumstances must be examined to determine whether they will support the conclusion that the parties intended to create an easement.”

Prescriptive Easements

When is breaking the law rewarded by the law? When it is a trespass that lasts for 20 years. As explained by the New Hampshire Supreme Court in Greenan v. Lobban (1998), “[t]o establish a prescriptive easement, the plaintiff must prove by a balance of probabilities twenty years’ adverse, continuous, uninterrupted use of the land claimed in such a manner as to give notice to the record owner that an adverse claim was being made to it.”

Adverse use does not require hostility between the parties, so long as the use is trespassory. Use is trespassory if it consists of a wrong which the fee-holder can prevent or for which he can obtain damages by means of legal action, as the New Hampshire Supreme Court stated in Bonardi v. Kazmirchuk (2001).

Being friendly to the trespassers is of no use to a landowner who is trying to prevent an easement by prescription, as illustrated by Jesurum v. WBTSCC Limited Partnership (2016). There, the landowners argued that their neighborly and friendly interactions with the trespassers amounted to permission, which prevented the prescriptive easement. The court rejected that argument: “The neighborly interactions between golf course employees and the public do not negate the fact that the public used Sanders Point without regard for the property rights of the defendants or their predecessors.”

Relocating Easements

New Hampshire law regarding relocating easements differs from Massachusetts law. In M.P.M. Builders. LLC v. Dwyer (2004), Massachusetts adopted Restatement (Third) of Property (Servitudes) Section 4.8(3) (2000), which provides that: “Unless expressly denied by the terms of an easement,… the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.”

In New Hampshire, as set forth in Duxbury-Fox (2009), the general rule is that easements cannot be relocated unilaterally, but there is an exception when the owner of the servient estate unilaterally moves the easement, and the owners of the dominant estates acquiesce by using the new right of way for 30 years. Another exception occurs when the original right of way is obstructed by the owner of the servient estate. In that case, as discussed by the New Hampshire Supreme Court in Dumont v. Town of Wolfeboro (1993), “the owner of the dominant estate may deviate from the deeded easement to the extent reasonably necessary to secure an egress.”

John Willis

John Willis is a member of the New Hampshire and Massachusetts bars. As an attorney at Fidelity National Law Group in Boston, he handles real estate title litigation in both states.

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