This case clarifies the effect of a tax deed on a prescriptive easement across the deeded lot. When a town takes property by tax deed, the previous owner’s interest in the real estate is terminated. The land may then be sold or held in a governmental capacity for public use. If the statute has been followed precisely, the deed extinguishes the previous title and creates a new title. Under our statute, the tax lien enjoys a “super priority” that has the ability to completely wipe out all other claims against the real property. However, as the Court in this case determined, an easement which has already ripened before the tax deed is executed survives the tax deed.
A “prescriptive easement” is a form of adverse possession. A person may obtain such an easement by using the land for at least 20 years in an open, adverse, continuous and uninterrupted manner. In this case, the plaintiffs claimed they had traveled over the defendants’ lots in this manner for at least 20 years to reach Lake Ossipee. However, after that time, the Town of Ossipee took the defendants’ lots by tax deed. In this case, the Court was asked to decide whether or not the tax deed extinguished the plaintiffs’ easement across that land.
The Court addressed this issue in an earlier case, Burke v. Pierro, 159 N.H. 504 (2009) (summarized in the January 2010 issue of New Hampshire Town and City), holding that a tax deed extinguished the prescriptive period of use that had not yet continued for the required 20 years. In contrast, here the Court noted that the plaintiffs’ easement had ripened into a vested property right before the tax deed was executed. The difference, as the Court explained, is that the prior case involved “the mere possibility that continued adverse use” for the remainder of the 20 years would ripen into an easement; this case involved an easement that had already become vested.