The Exact Moment an Easement Is Born in New Hampshire When One Party Owns Both Lots
When a planning board-approved plan expressly designates a parking area as "common parking" and states that multiple lots "are to have deeded access" to it, some might assume those rights exist immediately. The New Hampshire Supreme Court's order in McCann v. Bower shows that assumption can be wrong, and explains precisely when such an easement does come into existence.
Background
A 1999 lot line adjustment plan established three abutting lots in Allenstown, New Hampshire: Lots 41, 43, and 44. (Lot 42 was absorbed into Lot 43.)
The plan placed a common parking area on Lot 43 and stated: "The parking area [on Lot 43] is to be common parking for all of the parcels shown on this plan. Lots 41, 43 & 44 are to have deeded access to this common parking area." (This dispute involves only Lots 43 and 44.)
The owner conveyed Lots 43 and 44 to a third party by separate deeds, each deed referencing the plan and parking easement.
The owner of Lots 43 and 44 then conveyed Lot 44 to a separate party by deed referencing the plan and parking easement. Title to Lots 43 and 44 thus were owned by separate parties for the first time.
Shortly thereafter, the owner of Lot 43 recorded a "partial release of easement” purporting to abandon Lot 44's parking easement on Lot 43 (the “Parking Release”).
Lots 43 and 44 changed hands several more times without incident. Although not stated in the order, it appears the subsequent deeds referenced the plan and easement but not the Partial Release.
In March 2020, Bower purchased Lot 43 by deed stating the conveyance was subject to the plan and to the parking easement rights reserved for Lots 41 and 44.
In May 2020, McCann purchased Lot 44 by deed that included the 2-vehicle easement and a reference the plan.
McCann's tenants parked cars on Lot 43 pursuant to the parking easement.
Bower believed the Parking Release terminated Lot 44's right to park cars on Lot 43 and interfered with the tenants' use of the parking area.
The parties filed suit.
Superior Court
The Superior Court found that Lot 44 held a valid appurtenant parking easement entitling McCann’s tenants to park vehicles on Lot 43. Bower appealed.
Supreme Court
The New Hampshire Supreme Court affirmed, resolving the central question of when plan and deed language creates an enforceable easement through a two-part analysis.
First, the plan language and deeds executed while one party owned both lots did not create an easement. Under New Hampshire property law, an owner cannot grant an easement over property it owns. The language was dormant and legally inoperative, regardless of how clearly it expressed an intent to create parking rights.
Second, the easement came into existence at a specific, identifiable moment: when the common owner conveyed Lot 44 to a separate party while retaining Lot 43. That conveyance severed unity of title. The deed to the new Lot 44 owner contained the same parking easement language that had appeared in prior deeds, but for the first time the dominant estate (the lot benefitted by the easement - Lot 44) and the servient estate (the lot subject to the easement - Lot 43) were in different hands.
As to the Parking Release, the owner of Lot 43 recorded the release after it had already conveyed Lot 44 to a separate party. Only the owner of the dominant estate has authority to release its appurtenant easement. Having already conveyed Lot 44, the Lot 43 owner no longer held that authority. The release was ineffective, and the parking easement survived.
Key Takeaway
In New Hampshire, easement language in a plan or deed does not become legally operative until the dominant and servient estates are in different hands. A planning board-approved plan designating common parking, and deed language expressly granting parking rights to a specific parcel, can be necessary but not sufficient to create an enforceable easement. The easement arises at the moment ownership of the two estates is separated by a conveyance. Until then, however clear the language, no enforceable property right exists.
McCann v. Bower, No. 2025-0230 (non-precedential order) (Aug. 14, 2026). (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority over other cases, but it may provide guidance on how New Hampshire courts may approach similar issues in the future.)
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