Justia Real Estate & Property Law Opinion Summaries

Petitioners, the Towns of Chester and Hudson (collectively, Towns), appealed a Board of Tax and Land Appeals (BTLA) order granting respondent Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH) abatements of taxes assessed against its property located in Chester for tax years 2014 and 2016 and in Hudson for tax years 2014, 2015, and 2016. PSNH submitted an appraisal report prepared by its expert, Concentric Energy Advisors, Inc., setting forth the expert’s opinion of the aggregate fair market value of PSNH’s taxable property located in each municipality for each tax year. Two appraisers employed by the Towns’ expert, George E. Sansoucy, P.E., LLC (GES), used a substantially similar methodology in appraising the fair market value of the land interests. The BTLA compared the equalized market value to the aggregate assessed value for each municipality for each tax year. The BTLA concluded that an assessment was unreasonable and granted an abatement when it determined that the difference between the equalized market value and the aggregate assessed value was greater than five percent. The Towns argued that because both GES and Concentric relied upon the assessed value of PSNH’s land interests in reaching their opinions of fair market value, the values that the BTLA incorporated into its analysis “were already proportionate” and “should not have had the equalization ratio[s] applied to them.” The BTLA denied the Towns’ motion for reconsideration, noting that it based its calculations upon values that “were supplied by the [Towns] themselves in the stipulations agreed to by them” and adopting the arguments PSNH raised in its objection. Finding no reversible error in the BTLA's order, the New Hampshire Supreme Court affirmed. View "Appeal of Town of Chester et al." on Justia Law

Plaintiffs Chad and Kelly Short (Buyers) appealed a superior court order denying their requests for specific performance and attorney’s fees and costs in connection with an alleged contract to purchase real estate from defendants John and Lori LaPlante, as trustees of the LaPlante Family Revocable Trust (Sellers). Buyers visited the Sellers’ Concord home for the first time on May 24, 2018, and that day submitted an offer to purchase it for $690,000. After negotiations, but before the purchase and sale agreement (P&S) was executed, the parties agreed that the Buyers would purchase the property for $690,000 and would submit $10,000 as a deposit, and the Sellers would furnish up to $7,250 in closing costs. On June 1, the Sellers located a property in Stratham that they thought would suit their needs. They submitted an offer on that property on June 3. Also, on June 3, the parties fully executed the final P&S for the Sellers’ Concord property, which included the following provision (the Disputed Provision): “This agreement is subject to Sellers finding suitable housing no later than July 14, 2018.” On June 5, the Sellers sent an email apologizing to the Buyers “for wanting to cancel the P&S . . . at this stage.“ Buyers interpreted the Sellers’ attempt to cancel the P&S as an indication the Sellers received a better offer; Buyers subsequently brought this action. The trial court found that the P&S was not “a binding and enforceable contract” because “[t]here was no meeting of the minds regarding the Disputed Provision.” The Buyers unsuccessfully moved for reconsideration, and this appeal followed. The New Hampshire Supreme Court found no reversible error in the superior court’s order and affirmed. View "Short v. LaPlante" on Justia Law

Plaintiff Lauren Shearer appealed, and defendants Ronald Raymond and Sandra Auvil cross-appealed a superior court order which found plaintiff had an easement across defendants’ property to access his landlocked property. The court ruled that “by operation of common law” plaintiff had an easement to access his parcel over a public highway that was discontinued by town vote in 1898. Defendants’ cross-appeal presented a question of first impression for the New Hampshire Supreme Court: whether the owner of landlocked property had an easement for ingress and egress over a public highway that was discontinued by town vote prior to the enactment of the statutory right of access. Plaintiff, in turn, appealed certain aspects of the trial court’s order relating to the width and permitted uses of the easement. The Supreme Court held that, under New Hampshire common law, an easement existed over a discontinued highway if the landowner demonstrated the easement was reasonably necessary for ingress and egress to the property. The Court vacated the trial court’s decision and remanded for the trial court to make that determination in the first instance. In the interests of judicial economy and because the issues might arise on remand, the Supreme Court also addressed the issues raised by plaintiff in his appeal. View "Shearer v. Raymond" on Justia Law

Defendants Shane and Trina Beattie appealed a superior court orderthat dismissed with prejudice their preliminary objection challenging the State’s taking of 0.93 acres of their land in fee simple, as well as permanent and temporary easements. The Beatties argued the trial court erred when, in dismissing their preliminary objection which challenged the necessity and net-public benefit of the taking, the trial court applied the fraud or gross mistake standard of review set forth in RSA chapter 230 rather than a de novo standard pursuant to RSA chapter 498-A. The State contended the trial court did not err because RSA chapter 230, not RSA chapter 498-A governed the outcome of the case. The New Hampshire Supreme Court agreed with the Beatties, reversed and remanded. View "New Hampshire v. Beattie" on Justia Law

Defendants Henry Palmer and Janis Monty-Palmer appealed a superior court order that granted summary judgment in favor of plaintiffs Richard Arell, Jr. and Natalie Allard-Arell. In their petition for declaratory judgment and injunctive relief, the Arells asserted that the Palmers’ temporary easement to use a well on the Arells’ property required the Palmers to develop their own water source. The trial court ordered the Palmers to investigate the cost and feasibility of developing a well on their own property, and, if possible and reasonable, to install a well within three years. Because the clear and unambiguous language of the Palmers’ deed did not support the trial court’s decision, the New Hampshire Supreme Court reversed and remanded. View "Arell v. Palmer" on Justia Law

Plaintiffs Balzotti Global Group, LLC (the Global Group) and Caesar Balzotti, Sr., appealed a superior court order dismissing their claims against defendants Shepherds Hill Proponents, LLC (Proponents), Shepherds Hill Development Company, LLC (Development Company), Shepherds Hill Homeowners Association, Inc. (Association), Ralph Caruso, and Ernest J. Thibeault, III, on the ground that their claims were time-barred. At some point before 1999, the Development Company obtained approval to construct 400 condominium units. After work had begun on the project, the real estate market collapsed, and the Development Company filed for bankruptcy. Balzotti, Caruso, and Thibeault proposed to reorganize the Development Company so that the project could be completed and creditors could be paid. Their proposal included creating the Proponents, a limited liability company in which Caruso, Thibeault and Balzotti would have an interest. The bankruptcy court accepted the proposal as the reorganization plan in 2000. In 2003, the Development Company established the Shepherds Hill Condominium by recording a declaration of condominium with the county registry of deeds. The Development Company amended the declaration, setting a deadline for the conversion of Units located within the "convertible land." Between February 26, 2003, and July 6, 2009, the Development Company periodically exercised its right to build new condominium units on convertible land. However, by July 6, 2009, only 274 out of the possible 400 units had been constructed. Balzotti opened an involuntary bankruptcy proceeding on Development Company, the Proponents, and Thibeault when they missed payments on a promissory note issued as part of the original bankruptcy plan. By 2011, pursuant to the original condominium declaration, the Association was governed by a board elected by the condominium unit owners. The Development Company unsuccessfully attempted to amend the condominium declaration to obtain rights to develop the remaining land and unfinished units remaining prior to the association taking control. By 2018, plaintiffs sued the Development Company, Proponents, Caruso and Thibeault, asserting a number of claims arising out of the Development Company's loss of the Development Right. Defendants successfully argued plaintiffs' claims were time-barred because they were brought more than three years after the Development Right was lost. The New Hampshire Supreme Court concluded the trial court did not err in concluding plaintiffs' claims were time barred. View "Balzotti Global Group, LLC v. Shepherds Hill Proponents, LLC" on Justia Law

Plaintiff Edward Favart appealed a superior court order ruling that land owned by defendants Steven and Kevin Ouellette, benefitted from an implied easement over plaintiff’s land along a fifteen-foot wide access road to the “beach area” of Sip Pond depicted on a 1992 subdivision plan. The court further ruled that installation and use of a dock was a reasonable use of the easement. We affirm in part, reverse in part, and remand.The New Hampshire Supreme Court concluded that the superior court erred in relying upon “the evidence of the existence and use of prior docks in the area.” Plaintiff argued there was no evidence that a dock had ever been installed on the beach area of Lot 8, and thus defendants' dock was not within the scope of the implied easement. To this, the Supreme Court agreed, and reversed that part of the trial court judgment. The Supreme Court affirmed in all other respects. View "Favart v. Ouellette" on Justia Law

Defendant Town of Bedford appealed a superior court order: (1) ruling that the statutory scheme governing a municipality’s obligations to compensate a former owner of property that the municipality acquired by the execution of a tax deed violated Part I, Article 12 of the New Hampshire Constitution; and (2) awarding plaintiff Richard Polonsky equitable relief. In 2008, plaintiff inherited property in Bedford. Plaintiff failed to pay his real estate taxes in 2008, 2009, and 2010. Consequently, tax liens were imposed on the property for each of those years. When plaintiff failed to redeem the property by paying the amount of the liens plus interest, the town tax collector issued a tax deed conveying the property to the Town on May 31, 2011. The Town did not take any action regarding the property until 2013, when it contacted plaintiff by telephone to advise him of the amount of back taxes, interest, costs, and penalties required to repurchase the property, and of the Town’s intention to sell the property by auction if he chose not to repurchase it. Plaintiff offered to pay back taxes but requested that the Town waive the additional charges, citing ongoing medical problems that began in 2009. The Town Council voted to reject plaintiff’s offer and began the sale process. Six months later, the Town formally noticed plaintiff of its intent to sell the property. Although plaintiff did not respond to the notice, the Town did not sell the property. In April 2015, plaintiff received another notice of the Town’s intent to sell the property, informing him of his right to repurchase. Plaintiff again offered to pay the amount of back taxes and interest, but requested that the Town waive the penalties. The Town rejected the offer. Through counsel, plaintiff twice requested for reconsideration. Then plaintiff filed suit, alleging, in part, that the Town’s intent to keep excess proceeds from an eventual sale of the property violated his “right to the equity in the subject property” under the state constitution. The New Hampshire Supreme Court affirmed the trial court, finding that RSA 80:89, VII extinguished a municipality’s duty to provide excess proceeds for the taking of his or her property by tax deed after three years from the date of the recording of the deed, without requiring that the municipality execute that duty; the statute’s three-year limitation upon the municipality’s duty to pay excess proceeds violated Part I, Article 12 of the New Hampshire Constitution. Because the Town acquired plaintiff’s property without providing compensation, the trial court did not err in awarding equitable relief to plaintiff. View "Polonsky v. Town of Bedford" on Justia Law

Defendant Paul Bernier appealed two superior court orders granting partial summary judgment to plaintiff Thomas Loeffler, and denying his subsequent motion for reconsideration. The court ruled that defendant was estopped by deed from denying that plaintiff had an implied easement to access a right-of- way located on defendant’s property from a specific point on plaintiff’s property. The court also denied defendant leave to raise new arguments at the reconsideration stage asserting that plaintiff had abandoned any implied easement and, alternatively, that the purpose of any implied easement had been frustrated. Finding no reversible error in the superior court's judgments, the New Hampshire Supreme Court affirmed. View "Loeffler v. Bernier" on Justia Law

The State appealed a superior court order relating to the reassessment of eminent domain damages. Torromeo Industries owned several acres of land in Plaistow, New Hampshire on which there was a 4,000 square foot light industrial building and a 1,500 square foot single-family residence. The property is located in the town’s “Industrial I” zone. Before the taking at issue, Torromeo’s lot consisted of 11.88 acres with approximately 149 feet of frontage. Although the property’s 149 feet of frontage did not comply with the zoning ordinance, according to the State’s appraiser and not disputed by Torromeo’s appraiser, it “was approved by the Planning Board in 1989 and is considered to be a legally permitted pre-existing use.” In 2015, the State took approximately 1.9 acres of Torromeo’s land by eminent domain to construct a two-lane, paved service road. To complete the project, the State also took approximately 30,000 square feet for permanent and temporary easements. As a result of the taking, Torromeo’s property became three independent parcels: (1) a .36-acre lot on which the residence sat; (2) an approximately 10-acre site on which the light industrial building sits and of which approximately 6.55-to-8 acres are considered to be surplus land; and (3) a .28-acre “gore” or uneconomic remnant. The State offered Torromeo $500 as just compensation for the taking. Torromeo declined the offer and sought a determination of condemnation damages from the New Hampshire Board of Tax and Land Appeals (BTLA). Following the hearing and a view of the property, the trial court accepted the State’s appraisal except as it related to the residential portion of the property. The court, therefore, awarded Torromeo $70,800 as just compensation for the taking, based upon the State’s expert’s opinion that the taking caused $70,000 in damages to the surplus land, and upon the $800 value the court gave to a temporary construction easement. The New Hampshire Supreme Court determined that although as the trier of fact, the trial court was entitled to accept or reject such portions of the evidence as it found proper, including that of expert witnesses, the court was not entitled to, in effect, introduce its own evidence into the proceeding. The Supreme Court found the trial court's decision was not supported by the record, reversed and remanded for further proceedings. View "Torromeo Industries v. New Hampshire" on Justia Law