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lwpat, Attorney
Category: Real Estate Law
Satisfied Customers: 25387
Experience:  Practicing attorney with expertise in easements
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We own 7 acres on a waterfall in New Hampshire. There is no

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We own 7 acres on a waterfall in New Hampshire. There is no dwelling on the land, but we plan to build one soon. We recently had the land surveyed for the first time since our homeowner's association was founded in 1971, and discovered that what everyone assumed was common land is in fact private land that belongs to us. This land gives access to the bottom section of the waterfall, and is used by people in the association, as well as trespassers who do not have permission to use it. We'd like to keep this area private from now on for privacy as well as liability reasons, as the steep stairs leading down to the waterfall are often wet or icy. The president of the association claims that they have a prescriptive easement because everyone has always used this path, and there is no other way to access the bottom of the falls. Is it possible to have a prescriptive easement over land that has been unoccupied, and which no one knew was private? The previous owner did not know that the path to the waterfall was on his land, nor did we until we had the lot surveyed. Thank you!
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I hate to give bad news but it is possible for someone to acquire a prescriptive easement by use over a period of time.

Here is the case law

To establish a prescriptive easement, the defendant must prove by the balance of the probabilities that she used the plaintiff’s driveway for twenty years and that her use was "adverse, continuous, and uninterrupted . . . in such a manner as to give notice to [the plaintiff] that an adverse claim was being made to it." Sandford v. Town of Wolfeboro, 143 N.H. 481, 484 (1999) (quotation omitted).

The plaintiff argues that the trial court’s finding that the defendant’s use was adverse was unsupported by the evidence, especially given that the plaintiff and the defendant testified that they believed that the defendant’s use was permissive.

We have held that to satisfy the adverse use requirement, "[t]he nature of the use must have been such as to show that the owner knew or ought to have known that the right was being exercised, not in reliance upon the owner’s toleration or permission, but without regard to the owner’s consent." Id. (brackets and quotation omitted). "[A]dverse use does not require hostility between the two property owners," so long as the use is "trespassory." Ellison v. Fellows, 121 N.H. 978, 981 (1981). Use is "trespassory" if it consists of "a wrong which the fee holder can prevent or for which he can obtain damages by means of legal action." Zivic v. Place, 122 N.H. 808, 815 (1982) (quotation omitted).

To establish a prima facie case of adverse use, the defendant must first produce evidence of acts of such a character that they create an inference of non-permissive use. See Sandford, 143 N.H. at 485-86. Once the defendant satisfies this initial burden, the burden shifts to the plaintiff to produce evidence that the defendant’s use of the driveway was permitted. See id. at 486. The burden of persuasion remains at all times on the defendant.

Since the public has used the property since 1971 it appears that the twenty years requirement has been met. Your argument against the prescriptive easement would be that such use has been permissive.

For a decision, you and the association would have to actually go to court and that would be expensive for both sides. The fact that you and the previous owner did not know will not help your case since the law assumes that you and the previous owner should have known.

The decision as to what to do is up to you. There does appear to be a good case for the association to claim a prescriptive easement since the twenty years of use has been met. It does not matter that there was no residence on the property. Sorry to give you the bad news but the law is what it is. Thanks
Customer: replied 4 years ago.

Thanks for your reply. So even if no one knew that the land was ours, including the association and the previous owner, the association still has a prescriptive easement? Wouldn't that mean that the use was not "trespassory," as the association assumed that the path was on common land? Or does simple use of the land over 40 years give them a prescriptive easement, whether they knew they were trespassing or not? Thank you again.

What you are asking is what a judge would have to determine. However, it does appear that they have a good case for a prescriptive easement based on New Hampshire law. You don't have a prescriptive easement until a court says you have one. You can block off the access and see what happens.
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