Real Estate Easement Rights in New Hampshire

Real estate easement rights in New Hampshire is an issue the New Hampshire Supreme Court recently addressed in the context of property rights arising from the subdivision of a 400 acre parcel of land in Pittsburg, New Hampshire.  Restrictive covenants that were part of the subdivision were not uniform across all lots.  Issues involving easements and the use of a right-of-way surfaced.  Stating the doctrine of merger, the Court noted that agreements between parties that were included in a contract for sale may be extinguished and merged into a deed.

The Court then held that the owner of a back lot had an easement by implication over an right of way.  The Court explained that such an easement is presumed to exist if there is unity of title of lots and, during the unity of title, the owner imposes a permanent and obvious servitude on one lot in favor or another.  Whether such an implied easement exists depends upon whether the parties at the time of the grant could have that the right was not granted.  The easement only arises if the parties so agreed.

The Court also addressed maintenance obligations of the easement.  The grantee of a right of way takes by implication whatever rights are necessary to enjoy the right of way.  Generally, the dominant tenant has the right and duty to maintain the easement so that it can used for the purpose for which it was granted.  The owner of the easement may not increase the burden on the servient estate or unreasonably interfere with the rights of its owner.  The servient tenant also may maintain the easement when both parties use it.  Unless the obligation to maintain it is specifically identified in deeds, it becomes a factual issue that a Court must determine regarding each parties obligations and whether each parties actions in maintaining the easement interfere with the others party’s rights or obligations.

The Court considered the issue of reformation of the deed.  This is an equitable remedy meaning the Court can amend the language of deeds when the evidence shows that the instrument is not the true expression of the agreement.  This is a high burden for a party to meet as they must do so by “clear and convincing evidence.”

Finally, the Court denied the property owner’s request for real estate attorney’s fees and costs arising from their need to defend the warranty deed against another property’s owner’s claims.  The Court ruled, however, that the actions were in the nature of reformation and were not actions under the warranty deed and did not, therefore, warrant attorney’s fees and costs.

The case is Choquette v. Robichaud v. Roy, Dkt. No. 2013-743, (April 3, 2015)

If you have questions on real estate law or construction law please contact us.


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John P. Sherman, Esq. opened his own firm in 2005 after rising through the ranks to become a partner at one of New Hampshire’s largest law firms. Today he applies his deep expertise in personal injury, employment law, construction law, and real estate law to provide strategic counsel to both businesses and individuals in New Hampshire and Massachusetts. John holds a J.D. cum laude from American University, Washington College of Law and has a track record of successfully litigating cases in state and federal courts. Learn More »