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  1. #1
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    Default Am I Liable for People Using Right of Way

    My question involves real estate located in the State of: New Hampshire

    I recently bought a house on a lake. 6 of the neighbors use a right of way through my side yard down to my beach and have easements for recreational use of the right of way/beach. I believe I am liable if someone was to get injured on either the right of way or beach but can't find any real concrete information about this.

    Another one of my concerns is the boat dock. I own to the "high water mark" on the beach, and from there down it is state/public land which is the lake. My boat dock is technically not on my property because it starts at the waters edge, extending into the lake. What could happen if someone was to get injured there?

    I am trying to make sure that I have sufficient liability coverage from my home owners insurance and that there isn't something that the insurance company or myself has overlooked and could potentially lead to me not being covered. The insurance company is aware of the right of way, beach and dock.

    Thanks in advance, any info/advice is appreciated.

  2. #2
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    Default Re: Am I Liable for People Using Right of Way

    Does the express granting language say who is responsible for the maintenance of the easement? Have you or any of your predecessors made changes or improvements to the easement since it was granted that was not required in the grant language?

    The answers to those two question would have an impact as to whether or not you share in the liability if an easement holder or a third party was injured on the easement.

  3. #3
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    Default Re: Am I Liable for People Using Right of Way

    There is always a possibility of liability for people being injured on property you own regardless of issues such as easements or rights of way. That is simply a risk of ownership.

    regarding your dock; regardless where it is in respect to your land or government owned land, the dock itself is your property. That ownership is what causes you to incur liability.

    regarding the easement: even if others are obligated to maintain the property you could still be held liable for issues you cause. For example; if you left a glass glass on the beach and it became obscured by the sand, if somebody stepped on the glass and was cut, you may have liability for their injuries no matter who was injured.

    Unless the rights are held exclusively by the dominant tenants (meaning you would have no right to use the easement), barring an express assignment of the obligations of maintenance, you would share in the burden of maintaining the easement and as such, could bear liability if a person is injured due to a lack of maintenance. Even in a situation where the dominant tenants have the obligation of maintaining the land, you could still be liable to another party that is not a dominant tenant. As owner of the land, the law does impose some level of stewardship over your own property especially to those that are not involved in a legal arrangement you may have with others.

    no rule regarding liability will prevent a person from filing suit against you even if you have no liability under the law. As the owner of the property you should expect to be named as defendant or at least codefendant if there is ever a suit filed.

  4. #4
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    Default Re: Am I Liable for People Using Right of Way

    Quote Quoting BMag
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    I believe I am liable if someone was to get injured on either the right of way or beach but can't find any real concrete information about this.
    Here's the concrete answer. You are liable for somebody's injury if your NEGLIGENCE causes that injury. Your homeowners insurance pays if you are negligent and defends you if you aren't.

    It's that simple. Now stop worrying.

  5. #5
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    Default Re: Am I Liable for People Using Right of Way

    If it were only that simple. There are many lawyers out there that make a fantastic living arguing those seemingly simple points.


    More accurately a landowner is liable when they breach their duty of care to a person. That duty varies with different classes of people. For example, one has a greater duty to a guest than a trespasser. The negligence can be the same issue but be liable for a guests injuries and not liable for a trespassers injuries.

  6. #6
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    Default Re: Am I Liable for People Using Right of Way

    Quote Quoting jk
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    If it were only that simple. There are many lawyers out there that make a fantastic living arguing those seemingly simple points.


    More accurately a landowner is liable when they breach their duty of care to a person. That duty varies with different classes of people. For example, one has a greater duty to a guest than a trespasser. The negligence can be the same issue but be liable for a guests injuries and not liable for a trespassers injuries.
    If the person owning the right of way is that concerned about it, they can always buy an umbrella liability policy. Those types of policies are quite inexpensive.

  7. #7
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    Default Re: Am I Liable for People Using Right of Way

    Quote Quoting llworking
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    If the person owning the right of way is that concerned about it, they can always buy an umbrella liability policy. Those types of policies are quite inexpensive.
    Sure they can but how does that answer the question the op asked?

  8. #8
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    Default Re: Am I Liable for People Using Right of Way

    Some of your statements are just too broad in the context of easement and property tort law. I looked for a NH case and found none on point but did find a MD case exactly on point so I will use that case.


    Quote Quoting jk
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    There is always a possibility of liability for people being injured on property you own regardless of issues such as easements or rights of way. That is simply a risk of ownership..
    While there may always be a possibility of liability (depending of the facts) it is not regardless of issues of easements or rights of ways. The question OP asked is specifically what liability does he have because of the easement. The answer is a matter of law and who is the injured party.

    A landowner must use reasonable and ordinary care to keep the premises safe for an invitee, defined as one permitted to remain on the premises for purposes related to the owner's business. Bramble, 264 Md. at 521, 287 A.2d at 267.

    A licensee by invitation is a social guest and is owed a duty of reasonable care and must be warned of known dangerous conditions that cannot reasonably be discovered. Id. at 521-522, 287 A.2d at 267.

    A bare licensee is one who enters upon property, not as a social guest, but for his or her own convenience or purpose and with the landowner's consent. Mech v. Hearst Corp., 64 Md. App. 422, 426, 496 A.2d 1099, 1101 (1985), cert. denied, 305 Md. 175, 501 A.2d 1323 (1986). No duty is owed to a bare licensee except that he or she may not be wantonly or willfully injured or entrapped, nor may the occupier of land "create new and undisclosed sources of danger without warning the licensee." Sherman, 282 Md. at 242, 384 A.2d at 79. Under some circumstances, the landowner may be liable to a bare licensee for a dangerous condition known to the landowner. See W. Prosser, The Law of Torts 60, at 417-418 (W. Keeton 5th ed. 1984)

    Finally, a trespasser is one who intentionally and without consent or privilege enters another's property. Id. [264 Md.] at 522, 287 A.2d at 267. No duty is owed, except to refrain from willfully or wantonly injuring or entrapping the trespasser. Id. This rule of limited liability to trespassers permits "a person to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right." W. Prosser, supra, 58, at 395 [footnote omitted].).
    Clearly there is no duty to a trespasser or one who has a bare license.

    You have to look at both easement law and property law to know who in an easement situation has the liability for injury on the right of way.

    For purposes of property law, an easement is defined as an interest in land in the possession of another which

    (a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;

    (b) entitles him to protection as against third persons from interference in such use or enjoyment;

    (c) is not subject to the will of the possessor of the land;

    (d) is not a normal incident of the possession of any land possessed by the owner of the interest, and

    (e) is capable of creation by conveyance.

    Restatement of Property 450 (1944). It is "a nonpossessory interest in the real property of another...." Boucher v. Boyer, 301 Md. at 688, 484 A.2d at 635. See also Restatement of Property 450, comment b.


    In tort law, a possessor of land is defined in an altogether different manner than in property law. The property definition defines the "property" rights an easement holder has in the land as against the landowner and others. It is from the tort definition of "possessor" that the duty of an easement holder to a trespasser is derived. Section 328E of the Restatement (Second) of Torts (1965) defines a possessor of land as

    (a) a person who is in occupation of the land with intent to control it or

    (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

    (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).
    By exercising control over and using the right-of-way, the easement holder is in occupation of the land — thus, in possession of that land. See Leichter v. Eastern Realty Co., 358 Pa.Super. 189, 195-198, 516 A.2d 1247, 1250-1252 (1986) (Kelly, J., concurring), appeal denied, 515 Pa. 581, 527 A.2d 542 (1987) (one holding an easement, a nonpossessory interest, may be liable as a possessor of land under 328E depending upon amount of control exercised over the land). See also Black's Law Dictionary 1973 (5th ed. 1979) (defining occupation). As a possessor of land, the easement holder is afforded limited liability against a trespasser. See, e.g., Petrak v. Cooke Contracting Co., 329 Mich. 564, 46 N.W.2d 574 (1951); McLaughlin v. Bardsen, 50 Mont. 177, 145 P. 954 (1915); Soles v. Ohio Edison Co., 144 Ohio St. 373, 59 N.E.2d 138 (1945); Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792 (1958); Leichter v. Eastern Realty Co., supra; Roe v. Narragansett Elec. Co., 53 R.I. 342, 166 A. 695 (1933);
    The servient estate is not liable to anyone who is a licensee by invitation or a bare licensee of any of the dominant estates and not liable to any trespassers of the servient or dominant estates. It would be the dominant estates that would be liable to their licensees and invitees.

    Quote Quoting jk
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    regarding the easement: even if others are obligated to maintain the property you could still be held liable for issues you cause. For example; if you left a glass glass on the beach and it became obscured by the sand, if somebody stepped on the glass and was cut, you may have liability for their injuries no matter who was injured. .
    Not so. If it was the servient estate that invited or licensed the third party to use the beach then they may have liability. But if the third party was an invitee of any of the dominant estates, then no. The duty and liability rests with the dominant estate. There is no liability to the servient estate. And there would be no duty to or liability to any trespasser.



    Quote Quoting jk
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    Unless the rights are held exclusively by the dominant tenants (meaning you would have no right to use the easement), barring an express assignment of the obligations of maintenance, you would share in the burden of maintaining the easement and as such, could bear liability if a person is injured due to a lack of maintenance. Even in a situation where the dominant tenants have the obligation of maintaining the land, you could still be liable to another party that is not a dominant tenant. As owner of the land, the law does impose some level of stewardship over your own property especially to those that are not involved in a legal arrangement you may have with others.
    We don't know what is in the grant. If it silent on maintenance then the servient estate may be held to contribute to maintenance but it doesn't change the liability issue. If any dominant estate invites or allows access to the easement, it is their liability and not that of the servient estate.

  9. #9
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    Default Re: Am I Liable for People Using Right of Way

    You’re way off base on most of what you but I don’t have time to address things at the moment. I had a cititation proving you’re position on trespassers is incorrect specifically in New Hampshire but misplaced it. I’ll have to relocate it.

  10. #10
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    Default Re: Am I Liable for People Using Right of Way

    I'm waiting to find out how I am way off base when all I did is quote a court opinion. Look hard for the citation. Because if it doesn't address the question of increased liability because of an easement, it is most likely off point.

    I'm not interested in some general liability to a trespasser if not in regards to liability of an easement.

    Still waiting.

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