Waterville Estates Ass'n v. Town of Campton, 81-177
| Decision Date | 09 June 1982 |
| Docket Number | No. 81-177,81-177 |
| Citation | 446 A.2d 1167,122 N.H. 506 |
| Parties | WATERVILLE ESTATES ASSOCIATION v. TOWN OF CAMPTON. |
| Court | New Hampshire Supreme Court |
Moulton, Smith, Samaha & Vaughan, Littleton (Stephen U. Samaha, Littleton, on brief and orally), for plaintiff.
Sanders & McDermott, P. A., Hampton (Edward J. McDermott, Hampton, on the brief and orally), for defendant.
Daniel D. Crean, 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 non-profit 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.
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).
A license, on the other hand, is a transient or impermanent interest which does not constitute an "interest in land." See Houston v....
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