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.
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.
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:
location of the easement;
dimensions of the easement;
permissible uses for the easement;
- Who may use
- When the
easement will terminate;
- Who is
responsible for maintaining the easement;
indemnification, and exculpation;
responsible for paying property taxes;
responsible for maintaining insurance; and
Easements By Implication – An easement by
implication will be found if:
- There was
unity of title between the dominant estate and the servient estate;
- 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;
- That such
use was apparently obvious and permanent; and
- 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
Easement issues arise for a variety of reasons and can be
very time-consuming and costly to resolve.
Common easement disputes involve:
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.