The Driveway That Wasn't on the Deed
A seller of a five-acre parcel in a New Hampshire town checks "no" to easements on the seller property disclosure form. The buyer's agent notices a gravel driveway crossing the parcel's corner to a neighbor's barn. The neighbor says he has used it "since 1998" to haul hay and that the previous owner said it was fine. The seller says, "That's just a friendly arrangement; it's not on the deed." The property is described by metes and bounds and has not been surveyed in 30 years. The buyer wants to build a barn and fence in that corner. Closing is in three weeks.
1. How should the licensee handle the seller's "no easements" statement?
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The licensee should not simply accept or repeat the "no easements" answer. The neighbor's 20-plus years of use may create a prescriptive easement under New Hampshire law, where the prescriptive period is 20 years, even if nothing appears on the deed. The licensee does not need to give a legal opinion, but must disclose the known driveway use and recommend that the seller correct the disclosure form. The licensee should document the neighbor's statement and the seller's response.
2. What should the licensee recommend to the buyer before closing?
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The buyer should obtain a current survey and a title search, and have an attorney review the title and any easement issues. If the neighbor has a prescriptive easement, the buyer may need an easement agreement, a quitclaim release, or a title insurance endorsement. The licensee should recommend these professionals rather than advising the buyer that the driveway is "just friendly." The buyer should also confirm whether the driveway is within the parcel or crosses the boundary.
3. What risks does the buyer face if they build a fence across the driveway?
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If the neighbor has a prescriptive easement, a fence could interfere with a legal right of way and lead to an injunction or damages. Even if no easement is proven, the neighbor may claim one, clouding title and creating litigation. The buyer should not build until the survey and attorney review clarify the rights. The licensee should avoid telling the buyer to "just build it" and should document the recommendation.