When buying real estate in it's important to understand easements and how they may impact the property you may purchase. Whether you're planning to buy or sell knowing the type of easement on your property is crucial for avoiding future conflicts.
What is an Easement?
In simple terms, an easement is a legal right that allows someone else to use a portion of another's land for a specific purpose. A common example of an easement is when a neighbor has the right to cross your property to reach a public road or highway. While the easement grants the right to use the land, it does not transfer ownership of the land itself. The property owner retains full title to the property, while the easement grants rights to another to use the owner's property.
There are two primary types of easements in NH: appurtenant easements and easements in gross. Each type has distinct characteristics and implications for both landowners and those benefiting from the easement.
The Two Types of Easements in New Hampshire: Appurtenant and Gross
Appurtenant Easements
An appurtenant easement benefits a piece of property. Common examples of appurtenant easements include driveway easements and access easements. For instance, if you live on a property that does not have direct access to a public road, you might have an appurtenant easement allowing you to cross a neighbor's land to reach the street. The neighbor's land benefits your land because it provides access to the street and is considered "appurtenant" to your land.
In contemporary land transaction, appurtenant easement agreements are written in a deed, known as an expressly deeded easement. The easement should be recorded in the registry of deeds and is a very effective way to ensure that the easement rights are known to all to prevent confusion, and hopefully legal disputes with neighbors.
However, under New Hampshire law, a valid and enforceable easement appurtenant does not have to be expressly written or recorded in the registry of deeds. It is not uncommon in New Hampshire that land owners have easements appurtenant not written in deeds. When a dispute arises over an unwritten easement, the litigation can be very expensive because proof is largely based on prior use evidenced by photographs, changes in the land, monuments, and testimony. This year I had the opportunity to represent a client to decide his rights to use a beach and dock on a very popular lake in New Hampshire. The evidence in the case dates back to 1902! The trial is not over and will likely take ten days to finish.
Easements in Gross
An easement in gross benefits a specific person or entity rather than a parcel of land. Utility companies, for example, often have easements in gross that allow them to install, maintain, and repair infrastructure like power lines or pipelines on private property.
Unlike appurtenant easements, easements in gross are typically not transferred with the property. They are generally personal to the individual or company that holds the easement. In New Hampshire, easements in gross do not automatically transfer with the land, unlike in some other states. Legal challenges have arisen in the state regarding whether these easements should be transferable, but NH courts have not widely accepted that easements in gross should run with the land.
Why It Matters
Understanding the type of easement on your property is essential for several reasons. For example, if you have an appurtenant easement, you need to be aware of the rights of the person or entity using the easement, especially if you’re planning to sell your property. On the other hand, easements in gross may limit how you use your land, especially if a utility company has access rights for infrastructure.
If you are unsure about what type of easement exists on your property or need clarification on the legal details, it’s crucial to consult a real estate professional or attorney. Knowing your rights and responsibilities can save you from unexpected legal disputes and help you make informed decisions about your property.
Easements play a significant role in property ownership in New Hampshire. By understanding the difference between appurtenant easements and easements in gross, you can avoid misunderstandings and protect your property rights. Whether you have an easement on your land or are concerned about one on a neighboring property, seeking professional guidance is always a good idea. If you're unsure about an easement on your property, don’t hesitate to reach out to Apis Law for assistance in determining your rights and options.