Reminder to Memorialize Permissive Uses of Real Estate
By: Peter F. Imse
Date: September 28, 2018
The recent New Hampshire Supreme Court decision in Loon Valley Homeowner’s Ass’n v. Pollock, No. 2017-0198 LEXIS 54 (N.H. June 22, 2018) is a good reminder of the need to memorialize permissive uses of real estate. In this case, owners of property adjacent to a condominium gave the condominium association permission to use the property so long as the association fenced it in and paid all of the taxes on it. Some decades later, all of the new owners of the condominium units were unaware of the permissive nature of the use and brought an action against the landowner claiming title to the property by adverse possession. The Court denied the adverse possession claim because the use was permissive, based largely upon the recollection of the landowner regarding his conversations with the then-representatives of the owners’ association. Had he not been around, the outcome of the case could have been very different. The lesson to be learned from this case is that, where a permissive use is established, such as this, it is very important to memorialize the permissive nature of the use in writing, and, ideally, to record the document at the Registry of Deeds. This will put the world on notice of the permissive use and avoid future law suits such as this one.
The Court’s decision can be viewed here.