Two major practical proposals can be drawn from these cases. First, the term “for all purposes” in otherwise accessible facilities probably implies the right to increase the burden to include adjacent land acquired, provided that the proposed use is appropriate; Therefore, when representing the service owner, the easement should be adapted in the most specific way possible to the uses proposed by the dominant owner. Second, if you are defending yourself against a proposed increase in scope by using the “rule of reason” of the two-part test, be sure to make objective reasons why increasing use is not appropriate. If you have completed your due diligence at the common entry, you will have enough information to decide whether or not this is a problem. The recent court decisions of Ettinger, Village Green and Choquette mark New Hampshire`s position on easements in an interesting way. While the state is today a “respectable organ of authority” that gives users of services the right and obligation to maintain an easement proportional to their use, it belongs firmly to the minority of states that, in certain reasonable circumstances, openly allow the burden of services to be increased. There is no doubt that this legal field will evolve in a reasonable way to meet the conditions and culture of our one state. In two recent decisions, Village Green Condominium Association v. Hodges (March 20, 2015) and Choquette &a. v. Roy, et. Paragraph (3. April 2015), the New Hampshire Supreme Court clarified the obligations to repair and maintain easements on dominant and servant properties; That is, who bears the costs to keep the easement usable.
The Supreme Court confirmed, at the time of the transfer of the 103-hectare land, that the parties intended to grant access to the user through the right of way at issue and found that a reasonable person had concluded that the easement was “permanent and obvious” and “reasonably necessary for the equitable enjoyment of the [103 hectare] land”. Since the user had the right to increase the burden of servitude, the Tribunal decided that, in the absence of an agreement to the contrary, the user had the right and obligation under customary law to maintain the servitude, and that right existed, whether or not the other users of the easement perform maintenance work The importance of an easement is determined by reading the language, which creates the servitude which indicates the intentions of the parties and the purposes of the servitude. If the language that establishes servitude is clear and unambiguous, it is not necessary to consider extrinsic evidence. In Choquette, one of the central issues in the case was whether a service user had the right and obligation to maintain a right of way over his neighbour`s property. In this case, a landowner owned a plot of about 400 hectares of land that he divided into several lots for more than two decades. One of the divided lots, a 103-hectare plot of land, adopted a public road with two easements, one of which extended exclusively on nearby land. The acts of service in favour of the 103-hectare land ensured access through the right of way and remained silent on maintenance obligations. The owner of the neighbouring land filed an application for ease of enquiry which prohibited the easement user from obtaining and repairing the right of way on his land. .