In real estate, the conveyance of property—whether it's land, a building, or a specific interest in a property— involves not just the physical property itself but also the rights and privileges that come with it. These additional rights can include easements that are essential to the full use and enjoyment of the property. When transferring real estate, understanding how these rights are treated legally is important for both buyers and sellers. One legal provision that addresses this issue is RSA 477:26.
In this article, we will take a look at RSA 477:26, its implications for real estate transactions, and why it matters for both property buyers and sellers. We will break down the key points of the law, explore its underlying principles, and discuss the practical significance of understanding these legal provisions.
RSA 477:26
RSA 477:26 states that in a conveyance of real estate, all rights, easements, privileges, and appurtenances that belong to the land being conveyed are automatically included in the conveyance. There is no need for these rights to be listed in the deed for them to be included. Therefore, in New Hampshire easements automatically pass with the transfer of property to which they are appurtenant, even when absent from the face of the deed. Mansur v. Muskopf, 159 N.H. 216 (2009).
Key Components of RSA 477:26
Automatic Inclusion of Rights, Easements, and Appurtenances:
When a property is conveyed, all associated rights to the land are automatically transferred unless explicitly excluded.
This includes easements (rights to use someone else’s land for a specific purpose), privileges (special rights or advantages), and appurtenances (features or rights that benefit the property).
No Need for Specific Mention in the Deed:
There is no legal requirement to list these rights, easements, and privileges in the deed for them to be considered included.
Exception for Explicit Exclusions:
If the deed explicitly states that certain rights, easements, or appurtenances are not included in the conveyance.
What Are Easements?
To understand RSA 477:26, it's important to generally discuss what is meant by easements in the context of real estate.
1. Easement
An easement is a legal right to use another person’s property for a specific purpose. Easements are commonly associated with access roads, or rights of way. For example, if a property owner has an easement allowing them to cross their neighbor’s land to reach a public road, this easement is tied to the land, not to the owner of the property.
When property is conveyed, easements attached to the property (e.g., the right to use a neighbor’s driveway) automatically transfer with the land unless the deed specifically excludes the easement.
2. Appurtenance
An easement appurtenant refers to an easement that is permanently attached or related to the property and is transferred along with the land. An easement appurtenant to the land benefits its use in some way. There is the dominant estate, e.g. the property that has the right to use a neighbor's driveway, and there is the servient estate, e.g. the neighbor's driveway. Appurtenances are integral parts of the property that enhance its use and value. For example, the right to use the neighbor's driveway to access your home or a water right that allows a property owner to draw water from a well located on the neighbor's property.
When a property is conveyed, any appurtenances tied to that property, such as rights of way, shared driveways, water well access, or even rights to use a shared garden, automatically pass to the new owner, unless excluded in the deed.
Easements appurtenant generally come in three forms: written, implied, and prescriptive. A written easement is stated in a deed. An implied easement is not expressly identified in a deed but can arise out of the unique circumstances of the land conveyance and/or its historical use. A prescriptive easement is a right acquired through continuous, open, and adverse use of another's property over a twenty year period. Implied and prescriptive easements can have little to no written record of proof. RSA 477:26 applies to implied and prescriptive easements. Favart v. Ouellette, 173 N.H. 304 (2020). Therefore, implied and prescriptive easements appurtenant also automatically pass to the new owner even though the easements are not recorded in a deed.
Given that New Hampshire has a long history dating as far back to the 1600s, the automatic conveyance of implied and prescriptive easements presents a big issue for buyers and sellers who may not be aware of the existence of such easements. The issue can become a problem when buying property along public lakes in New Hampshire. Older lakeshore neighborhoods, usually dating back to the early 1900s, often have a history of use involving lake access through a neighbor's property. Owners often make assumptions about rights to beach access and use that are not supported by the law. Litigation over beach access is expensive as it is fact intensive. Given the amount of money people pay for real estate in areas like Lake Sunapee and Lake Winnipesaukee, the value of the property is usually tied to easements appurtenant. Therefore, if a land owner faces a challenge to their access to the shore, there is usually a good reason to litigate.
Practical Implications for Buyers and Sellers
For Buyers:
Due Diligence: Buyers should ensure that they understand which rights are included with the property and whether any exclusions apply. Even though RSA 477:26 automatically includes easements buyers may still want to verify the existence of these rights, especially if they are integral to the property’s use.
Review the Deed Carefully: If the seller has excluded any rights, easements, or privileges in the deed, this will be clearly stated. Buyers should carefully review the deed to ensure that they understand the full extent of what is included and excluded in the conveyance.
For Sellers:
Clarifying Exclusions: If the seller wants to exclude specific rights, easements, or privileges from the sale, they must be explicit in the deed. Sellers should work with a real estate attorney to ensure the deed accurately reflects their intentions.
Understanding the Default Rule: Sellers should also be aware that unless they explicitly exclude certain rights, they are automatically included in the transaction. This understanding will help prevent accidental transfers of rights or privileges that they did not intend to convey.
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