ROW to Cote Grave(s)

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Re: ROW to Cote Grave(s)

Postby TomBillbroughJr » Mon Jun 06, 2011 6:16 pm

Good luck.
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Re: ROW to Cote Grave(s)

Postby momof3 » Mon Jun 06, 2011 6:34 pm

http://www.courts.state.nh.us/supreme/o ... nar127.htm

Same scenario as with our case, "prescriptive easement"
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Re: ROW to Cote Grave(s)

Postby curt » Mon Jun 06, 2011 7:21 pm

BOS voted unanimously to deny the request because there was never any application for a burial permit.
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Re: ROW to Cote Grave(s)

Postby momof3 » Mon Jun 06, 2011 7:44 pm

Thanks Curt we will proceed wih the permit and to have the affadavit attached to the deed as you suggested earlier.
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Re: ROW to Cote Grave(s)

Postby curt » Tue Jun 07, 2011 7:28 am

I have direct experience with rights by prescription. I used to rely on it for access to my woodlot. And people rely on it to pass through my property to camps and woodlots.

Use by permission does not count towards acquiring rights by prescription. I would think that any use of the property of Al and Pat Cote during their lifetimes by their children would be construed to be use by permission of the parents.
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Re: ROW to Cote Grave(s)

Postby etocc » Tue Jun 07, 2011 7:56 am

the road was originally put in place by the now deceased person back in the 1950's, has been continually and is on all the plot plans, geographical maps, etc. Prior to my use other individuals used the same access road and therefore is being fought as a prescriptive easement
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Re: ROW to Cote Grave(s)

Postby AlfredTwo » Tue Jun 07, 2011 10:17 am

Seems like the real solution is simple. The part of the family that wants to keep the property in family hands buys it from the part of the family that is more interested in the money.
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Re: ROW to Cote Grave(s)

Postby TomBillbroughJr » Tue Jun 07, 2011 11:16 am

Unfortunately, the land is only being sold to pay off the outstanding debts incurred by my deceased grandparents. Medical bills (mostly), mortgage, "loans" that she had given out, as well as loans that she cosigned on and then had the primary signer default. We all grew up on that land and no one wants to see it go, but there is no other option.
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Re: ROW to Cote Grave(s)

Postby curt » Tue Jun 07, 2011 10:32 pm

etocc wrote:the road was originally put in place by the now deceased person back in the 1950's, has been continually and is on all the plot plans, geographical maps, etc. Prior to my use other individuals used the same access road and therefore is being fought as a prescriptive easement


Tell me if I got this right:

Your parents had a bunch of buildings on private roads/trails running from a single point on Long Pond Road, where Cote Drive now enters the property.

In 1989 they subdivided into lots 4-2, 4-2-1, 4-2-2. As part of this they created Cote Drive, which is basically a stub, with existing private roads/trails running off it. Their residence was on 4-2-1 and that is the subject parcel of this discussion. 4-2 and 4-2-2 are on either side of 4-2-1, and while each parcel has frontage and access from Cote Drive, there is some sort of connector road or trail between 4-2 and 4-2-2 that runs across 4-2-1, the subject parcel.

Your parents gave 4-2 and 4-2-2 to you at no cost in 1994. They did not convey any sort of easement to cross 4-2-1 between the two parcels but you have been doing that.

Here's my legal analysis, and you know of course that I am not a lawyer, I just play one on TV. :D

You cannot have an easement by prescription unless you have two separate property titles. Prior to 1994 all of the property was under one title, that of your parents, and anybody who used the property did so as their guests or agents. Therefore use of the property from the time that they bought it in 1953 until they conveyed the lots to you in 1994 has no bearing on whether you have created an easement by prescription. That could only start when you acquired a separate title from that of your parents and started using their property to travel between your lots instead of going the long way via Cote Drive.

The question at hand is whether your use of your parents' property after they conveyed your property to you was with their permission. Use with permission (which can be revoked) does not create an easement by prescription. And even if it was not with permission the length falls short of 20 years.
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Re: ROW to Cote Grave(s)

Postby curt » Tue Jun 07, 2011 10:40 pm

momof3 wrote:Thanks Curt we will proceed wih the permit and to have the affadavit attached to the deed as you suggested earlier.


Please don't take what I wrote to mean that if you obtain a permit and provide the BOS with evidence that there is a legal burial plot on the property, they will grant you the temporary right of way. It's just that they won't consider your request on its merits unless and until you provide the documentation.

If I were a selectman I would have made it clear that no matter what documentation you provided I would not vote to create a right of way as long as the issue is between siblings.

If you file an affidavit you should think about anything that could be construed to be slander of title.
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Re: ROW to Cote Grave(s)

Postby curt » Tue Jun 07, 2011 10:53 pm

momof3 wrote:My father died in 2004 and his final wishes were to have his cremated remains buried and were interred into hallow ground in his backyard overlooking his children (who remained living in the Danville area) their properties and his grandchildren. He wished for his property to remain in the family to be used as rental property until one of the grandchildren was older and settled enough to live in.


TomBillbroughJr wrote:Unfortunately, the land is only being sold to pay off the outstanding debts incurred by my deceased grandparents. Medical bills (mostly), mortgage, "loans" that she had given out, as well as loans that she cosigned on and then had the primary signer default. We all grew up on that land and no one wants to see it go, but there is no other option.


RSA 559:1 When License Granted. – The judge, on application of the administrator, may grant a license for the sale of the real estate of any person deceased, or of lands purchased or set off to the administrator in payment of debts due to the estate, when the personal property shall be insufficient to pay the just demands by law chargeable to the estate.


It's sad but if there is not sufficient cash on hand to pay the testator's debts, his desires for the ownership and use of his land will be overridden by the need to raise cash.
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Re: ROW to Cote Grave(s)

Postby etocc » Wed Jun 08, 2011 1:04 pm

Debts are less than $40,000, property advertised for $109,900. There are grandchildren who could use the property as the deceased wished and pay "rent" towards the bills until paid off. No the individuals have listed the estate only for a profit.

Property is not even worth the amount being asked, mold ridden, numerous hazordous electrical issues that had never been addressed because no electrical permit has ever been pulled. Two uncapped old dug wells, numerous old junk piles consisting of any type of junk you can think of, two underground oil tanks one of which leaked about 175 gallons of oil into the ground (fact: when deceased alive had filled tank and then several days later, tank empty) both the individuals and realtor not disclosing all info to perspective buyers.

House needs to be leveled, property cleaned up prior to a sale or occupancy. Electrical and health inspectors should be involved.
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Re: ROW to Cote Grave(s)

Postby AlfredTwo » Wed Jun 08, 2011 1:12 pm

I don't understand what is stopping someone in the family from getting a loan and buying the property. Sad if there is no one with the credit to do so alone but seems like several could get together if they wanted to. Either way it doesn't seem like people are working together and that is the really sad part.
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Re: ROW to Cote Grave(s)

Postby etocc » Wed Jun 08, 2011 1:50 pm

It is very sad when the deceased wishes are not followed and instead just for profit and that is what is going on here. When someone passes away it bring out the true colors of the family members.

I (Chuck) was not willed any of the property but I do need the (ROW) to my property. Ambulance, police and fire trucks need to use this since my regular driveway is to steep, bumpy, etc to get in and off my property, especially during the winter months.

Also access to my fathers burial site is a common descent thing to do, but with this side of the family, everything is a fight!
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Re: ROW to Cote Grave(s)

Postby curt » Wed Jun 08, 2011 6:01 pm

From looking at the recorded plan it and satellite photos, it appears to me that you could buy the back part of your parents' parcel from the estate and connect your two parcels.

There is more than enough land to do this, since your parents' parcel is 5.8 acres and only 2 acres are required. You would not diminish the value of your parents' parcel significantly because there is not enough frontage on it to subdivide and create a separate lot. But you could do a lot line adjustment, transferring the back of your parents' parcel to one of your parcels, with no net increase in the number of lots. Ideally you would be able to draw the line far enough north to include the existing driveway between your two parcels.

Since it would be a lot line adjustment, not a subdivision, the planning board would have to approve it as long as the remaining land on your parents' parcel has the required acreage and frontage.
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