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  1. #1
    Join Date
    Jan 2012

    Default Deeded Right of Way

    My question involves an easement in the state of:NH
    My husband and I have owned our property (5 1/2 acres, house and 2 outbuildings) for 20 years and 5 months. We access our house and land by a deeded right of way through land that is part of a large estate that has no homes on it and is currently for sale. The owners are absentee and haven't used the land for many years. The original deed for our property from 1932 states specifically that the road was built by the seller for the use of the buyer as part of the deal. Until we bought the property the road was little more than a dirt track 1/4 mile in length, and was prone to flooding and was impassable at certain times of the year (mud season). Over the years we have put considerable time, effort and money into improving the road so we could use it year round. No one else has ever used the road but us. While it is passable for ordinary car traffic, it is gravel and must be constantly maintained - it is not sturdy enough for large equipment. Recently a couple showed up to tell us that they own a landlocked 1 acre parcel that doesn't abut our property. They inherited their parcel from a relative who bought it from the same landowner who originally owned our parcel. Their deed gives them right of way through any of the land currently held by the owners of the large estate lands to access their parcel. These people want to build a vacation home on their land and were hinting that they'd like to use our right of way to access. If the do build and use our road, they will destroy the work we have done to improve it. What can we do? Thanks!

  2. #2
    Join Date
    Aug 2010

    Default Re: Deeded Right of Way

    I assume the destruction phase would happen during the period of time that the couple is building their vacation home what with construction vehicles and materials being brought through to the site. This could certainly be a case of overburdening an easement.

    While your concerns certainly are valid, this could be a golden opportunity for you if you work with your new neighbors and their contractor(s):

    1. It is possible to get what's called a construction easement; many DOT's use these during state highway improvement projects for example. It is a document which temporarily allows construction activities to occur inside the easement, typically with the stipulation that the ground be put back to a state the same or better than it had been before. I would consult a NH real estate attorney to see what options you have; it may not even need to be an easement. But you should procure some type of document be it an easement or a contract, etc. protecting the work you've put into the drive.

    2. During construction, the excavation company may be able to improve the drive to a state better than it is now; ie paving it. Speak to them about that possibility. Get estimates, and talk to the couple. Perhaps split the cost. An investment into the drive now could save you maintenance costs down the road.

    3. Speak with the couple about a maintenance agreement for the drive. Now that another party will be using it, you don't have to shoulder the entire cost of upkeep. Again, a local attorney can draft the maintenance agreement for you.

    Let us know how things turn out, and good luck.

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