New Hampshire Easement Law

An easement is a right to use the property of another for a specific purpose.  Easements falls within one of two categories: 1) easements in gross and 2) easement appurtenant.

• Easements in Gross – An easement in gross is created for the benefit of a specific individual. This means that the easement cannot be sold, assigned, or inherited.
• Easements Appurtenant – An easement appurtenant is created for the benefit of an adjoining parcel of land.  The primary characteristic of an easement appurtenant is the presence of a dominant estate and a servient estate.  The dominant estate is the land that benefits from the easement and the servient estate is the land that is burdened by the easement.  An easement appurtenant runs with the land.  This means that the easement will continue to exist regardless of who owns the dominant estate.

Easements in NH

Express Easements - Courts favor express easements.  An express easement is created by a written agreement between the parties, such as a deed or a contract.  A well-written express easement should include certain provisions including:

• The location of the easement;
• The dimensions of the easement;
• The permissible uses for the easement;
• Who may use the easement;
• When the easement will terminate;
• Who is responsible for maintaining the easement;
• Liability, indemnification, and exculpation;
• Who's responsible for paying property taxes;
• Who's responsible for maintaining insurance; and
• Default.

Easements By Implication – An easement by implication will be found if:

1. There was unity of title between the dominant estate and the servient estate;
2. Before the unity of title was severed, the common owner imposed a use on one portion of the land that benefited another portion of the land;
3. That such use was apparently obvious and permanent; and
4. At the time unity of title was severed, such use was reasonably necessary for the fair enjoyment of the dominant estate.

Easements By Necessity -  New Hampshire courts look to the intentions of the parties to determine whether an easement by necessity exists.  If a claimant can show that the easement is necessary for his reasonable enjoyment of the property and that the property cannot otherwise be used without disproportionate effort or expense, an easement by necessity will be implied.  Easements by necessity typically involve land that is landlocked or otherwise inaccessible.

Easement Disputes

Easement issues arise for a variety of reasons and can be very time-consuming and costly to resolve.  Common easement disputes involve:

• Misuse;
• Interference;
• Abandonment;
• Trespass;
• Boundary Lines; and
• Access Rights to Landlocked Property.

Help from a Real Estate Lawyer in New Hampshire

Whether you are negotiating an easement agreement or are in the midst of an easement dispute, you need a qualified real estate attorney on your side.  A real estate attorney will work closely with you to protect your interests and help you obtain the best result under the circumstances.