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Lynn v. Wentworth by Sea Master Association

Supreme Court of New Hampshire

May 27, 2016

PAUL LYNN & a.
v.
WENTWORTH BY THE SEA MASTER ASSOCIATION

          Argued: January 7, 2016

          Hinckley, Allen & Snyder, LLP, of Concord (Richard Y. Uchida and Daniel M. Deschenes on the brief, and Mr. Deschenes orally), for the plaintiffs.

          Sheehan Phinney Bass Green, PA, of Manchester (Michael C. Harvell and Megan C. Carrier on the brief, and Mr. Harvell orally), for the defendant.

          LYNN, J.

         The plaintiffs, Paul and Sara Lynn, appeal an order of the Superior Court (Anderson, J.) granting summary judgment to the defendant, Wentworth By The Sea Master Association (association), and denying summary judgment to the plaintiffs. The parties dispute the validity of an easement on the plaintiffs' property that provides members of the association beach access. Because we conclude that an easement was validly created, we affirm.

         I

         The record supports the following pertinent facts. The association governs a residential development, comprised of over 100 homes as well as common areas, in New Castle. The plaintiffs purchased their property, Lot 17, by warranty deed dated June 30, 2011. The easement at issue is a walkway that provides beach access to association members and their guests. It runs from Little Harbor Road along Lot 17 and the neighboring lot before cutting across Lot 17 to the water.

         Lot 17 was the site of the first house constructed in the development, and was first conveyed to the plaintiffs' predecessors in interest, the Horgans, by warranty deed dated April 28, 1995. Both Horgans testified during deposition that the easement existed on the property before they bought it from the developer. Mrs. Horgan recalled doing a "walk-through" with a realtor, and Mr. Horgan recalled speaking with a realtor on multiple occasions and meeting at least once with David Caligaris, a representative of the developer. Mr. Horgan testified that he knew there was an easement over the property when he and his wife purchased it. Caligaris testified that he and Mr. Horgan had a "handshake" on the existence of the easement, although its precise location may have been unclear. The Horgans also testified that they had no problems with the easement during the time that they lived on the property.

         The deed from the developer to the Horgans states: "This Conveyance is subject to all utility and other applicable easements or restrictions of record, or which may be recorded in the future with respect to the Wentworth By The Sea Development o[f] the Little Harbor Development." This language is also present in the plaintiffs' deed. No deed in the chain of title specifically mentions an easement providing beach access, although other easements are specifically mentioned.

         A site plan for the development, recorded in September 1994 by the association's predecessor, did not show the easement. On May 11, 1995 - 13 days after the Horgans purchased the property - a revised site plan, which depicted the easement, was recorded. The association's predecessor recorded a Declaration of Easement in April 1996, which stated:

An access easement in favor of NC Wentworth, LLC, and its successors, the Wentworth By The Sea Master Association, or any successor master association, over or upon the easement area shown as "Additional Access Easement" on Lot 17, on a plan entitled "Easement Plan for Lot 17 and 23 of Little [H]arbor, Wentworth By The Sea" to be recorded at the Rockingham County Registry of Deeds.

The predecessor also filed an Easement Plan in April 1996 depicting the easement running over the property.

         The Horgans' deed also states: "Title to and use of the above lot is subject to the Declaration of the Wentworth By The Sea Master Association, Covenants, Conditions and Restrictions, recorded at the Rockingham County Registry of Deeds at Book 3026, Page 2596, and amendments thereto recorded in said Registry." The association's Covenants, Conditions, and Restrictions (CCR) states, in relevant part:

The Wentworth By the Sea development is shown on the Master Site Plan dated February 3, 1993, and recorded . . . . The improvements, both existing and proposed, are shown on that Plan . . . or by any subsequent Site Plans. All such plans recorded in connection with the property shall, collectively or as a composite, be deemed to be the Master Site Plan(s).

         The record establishes that the plaintiffs had actual notice of the site plan, revised site plan, Declaration of Easement, Easement Plan, and the easement itself prior to purchasing the property. The Easement Plan was specifically mentioned in their deed: "Being the same premises shown on a plan entitled Easement Plan for Lot 17 & 23 at Little Harbor at ...


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