From Casetext: Smarter Legal Research

Waterville Estates Assoc. v. Town of Campton

Supreme Court of New Hampshire Grafton
Jun 9, 1982
122 N.H. 506 (N.H. 1982)

Summary

describing a license as "a transient or impermanent interest"

Summary of this case from Testa's, Inc. v. Coopersmith

Opinion

No. 81-177

Decided June 9, 1982

1. Easements — Nature of Grant An easement is a nonpossessory interest in realty which can only be created by prescription, written conveyance, or implication.

2. Easements — Appurtenant Easements — Generally An easement appurtenant is established for the benefit of the owner of a dominant parcel of land and entitles that landowner to a limited use or enjoyment of the servient parcel.

3. Easements — Appurtenant Easements — Generally An easement appurtenant runs with the land and is inheritable.

4. Easements — Appurtenant Easements — Generally Although it may be released or abandoned by the owner of the dominant estate, an easement appurtenant is not terminable at the will of the owner of the servient estate.

5. Licenses — Use of Land — Generally A license is a transient or impermanent interest which does not constitute an interest in land.

6. Licenses — Use of Land — Generally A license may be created orally and is merely a revocable personal privilege to perform an act on another individual's property, and, as such, it terminates when the licensee attempts to assign his rights or when the licensor dies or conveys the servient estate.

7. Taxation — Real Property — Evidence of Value Where common property was owned by a nonprofit homeowners' association and each owner had a right, in the nature of an equitable servitude, to use the common property, and, in addition, each owner's deed expressly included an exclusive easement entitling the owner to use the common property, and a declaration further provided that the owners' rights ran with the land and remained in effect for the maximum legal period, subject to revocation upon an affirmative vote of two-thirds of the owners, the interest of the owners in the common property was sufficiently akin to an easement to uphold the trial court's decision finding that the owners' rights effectively restricted the use of the common property and that the real estate therefore did not have a value for tax purposes.

Moulton, Smith, Samaha Vaughan, of Littleton (Stephen U. Samaha on the brief and orally), for the plaintiff.

Sanders and McDermott P.A., of Hampton (Edward J. McDermott on the brief and orally), for the defendant.

Daniel D. Crean, of Concord, by brief and orally, for New Hampshire Municipal Association, as amicus curiae.


The defendant town appeals from a Superior Court (Johnson, J.) decision to abate the plaintiff's real estate taxes for 1979. We affirm.

The plaintiff, a nonprofit homeowners' association, was established by the developer of Waterville Estates, a condominium development in Campton. It consists of all of the owners in Waterville Estates and holds title to several parcels of real estate, known as the common property, in the defendant town. These parcels which are the subject of the immediate dispute, contain various recreational facilities, including a community center, an indoor swimming pool, a ski lift, a ski lodge, and other buildings. By virtue of a declaration entitled "Waterville Estates Revised Property Restrictions, Easements and Covenants," which was recorded by the developer of Waterville Estates, each owner in the condominium development has a right, in the nature of an equitable servitude, to use the common property. In addition, each owner's deed expressly includes "[a]n exclusive easement . . . as defined and described in the declaration," entitling the owner to use the common property. While the declaration provides that the homeowners' rights "shall run with the land . . . and shall remain in effect for the maximum legal period," it allows for the revocation of such rights upon an affirmative vote of two-thirds of the plaintiff's members.

In 1979, the defendant town assessed the common property for tax purposes at a valuation of $76,000. The plaintiff disputed the valuation and brought a petition in superior court for an abatement. It claimed that the homeowners' rights effectively restricted the use of the common property and that the real estate therefore did not have a value for tax purposes. The trial court agreed with the plaintiff and ordered an abatement of the assessed valuation to $100. The defendant then initiated this appeal.

The specific amount of the abatement and the sufficiency of the evidence are not in issue on this appeal. The only question which the defendant town raises is whether the trial court erred in treating the homeowners' rights as easements. The defendant readily admits that the fair market value of real property is diminished to the extent that such property is encumbered with easements. See Gowen v. Swain, 90 N.H. 383, 387, 10 A.2d 249, 252 (1939). It argues, however, that the homeowners' rights, which were revocable upon an affirmative vote of two-thirds of the homeowners, were not easements appurtenant, as the trial court found, but rather licenses, which generally do not diminish the fair market value of real estate.

[1-4] An easement is a nonpossessory interest in realty which can only be created by prescription, written conveyance, or implication. RESTATEMENT OF THE LAW OF PROPERTY 450, 457, 467, 474, at 2901, 2923, 2953, 2972 (1944). An easement appurtenant is established for the benefit of the owner of a dominant parcel of land and entitles that landowner to a limited use or enjoyment of the servient parcel. Burcky v. Knowles, 120 N.H. 244, 247, 413 A.2d 585, 587 (1980); 3 R. POWELL, REAL PROPERTY 405, at 34-8 to -9 and 34-19 to -20 (1981). The easement appurtenant runs with the land and is inheritable. See Burcky v. Knowles, 120 N.H. at 247, 413 A.2d at 587; Duchesnaye v. Silva, 118 N.H. 728, 734, 394 A.2d 59, 62 (1978). Although it may be released or abandoned by the owner of the dominant estate, 3 R. POWELL, supra 421, at 34-237, the easement appurtenant is not terminable at the will of the owner of the servient estate. RESTATEMENT OF THE LAW OF PROPERTY 450, at 2901 (1944).

[5, 6] A license, on the other hand, is a transient or impermanent interest which does not constitute an "interest in land." See Houston v. Laffee, 46 N.H. 505, 507 (1866); 2 G. THOMPSON, REAL PROPERTY 316, at 17 (1980); 3 H. TIFFANY, THE LAW OF REAL PROPERTY 829, at 401 n. 2 (3d ed. 1939). But see RESTATEMENT OF THE LAW OF PROPERTY 512 comment c., at 3115-16 (1944). It may be created orally and is merely a revocable personal privilege to perform an act on another individual's property. See Blaisdell v. Railroad, 51 N.H. 483, 484-85 (1871); 3 R. POWELL, supra 428, at 34-293; 2 G. THOMPSON, supra 316, at 17. As such, it terminates when the licensee attempts to assign his rights, see Cowles v. Kidder, 24 N.H. 364, 379 (1852); 3 R. POWELL, supra 428, at 34-296 to -297, or when the licensor dies or conveys the servient estate. See Hallett v. Parker, 68 N.H. 598, 600, 39 A. 433, 435 (1896); 3 R. POWELL, supra 428, at 34-295 to -296.

In this case, the homeowners' rights were more than an ephemeral interest; they severely burdened the use of the common property. Although the rights were revocable upon a two-thirds affirmative vote of the homeowners, and therefore did not fall within the strict definition of easements, they resembled easements appurtenant in numerous respects. First, they were established in written instruments and permitted a limited use of the common property. Next, they were created to serve the residents of Waterville Estates — the owners of the dominant parcels. In addition, subject to the provisions for revocation, the rights were intended to run with the land and would terminate neither upon the death of the grantor nor upon the conveyance of the servient estates.

The provisions for revocation, moreover, allowed for termination only upon a two-thirds vote of the homeowners, who were also the holders of the rights. Thus the provisions essentially permitted the owners of the dominant estate to release their rights and, as previously mentioned, this procedure is a commonly accepted means for terminating an easement. Given these circumstances, especially the high percentage of owners needed to release the restrictions on the servient estate, we hold that the interest in the common area is sufficiently akin to an easement so as to justify the abatement of the plaintiff's taxes for 1979.

Affirmed.

BATCHELDER, J., did not sit; the others concurred.


Summaries of

Waterville Estates Assoc. v. Town of Campton

Supreme Court of New Hampshire Grafton
Jun 9, 1982
122 N.H. 506 (N.H. 1982)

describing a license as "a transient or impermanent interest"

Summary of this case from Testa's, Inc. v. Coopersmith
Case details for

Waterville Estates Assoc. v. Town of Campton

Case Details

Full title:WATERVILLE ESTATES ASSOCIATION v. TOWN OF CAMPTON

Court:Supreme Court of New Hampshire Grafton

Date published: Jun 9, 1982

Citations

122 N.H. 506 (N.H. 1982)
446 A.2d 1167

Citing Cases

Locke Lake Colony Assoc. v. Town of Barnstead

The town assessed property taxes on the plaintiff's property for the years 1981, 1982 and 1983. The plaintiff…

Manchester Water Works v. Town of Auburn

Finally, the Water Works argues that even if the easement is a self-imposed restriction, it should be…