Legal recourse for neighborhood denied access to coastline?
August 27, 2008 11:30 AM   Subscribe

Hi. For my mom. In New Hampshire, is there any sort of recourse for a neighborhood that has recently been denied by a new homeowner a "traditional path" down to the water, where all kayak and canoe? More inside.

For time immemorial (maybe 15 years, about the age of the neighborhood), all the neighbors enjoyed access to the small inlet at the bottom of the street, by using a path along the edge of one neighbor's yard. Everyone enjoys kayaking etc. This is a very pricey, upscale neighborhood on the NH coast. My mother especially is absolutely addicted to kayaking with her two dogs. She has serious back and shoulder issues, and is unable to lift her kayak onto her car, nor is she able to kayak in MOST of the waters around here because of current -- the proximity to this little inlet was one of her primary concerns when she moved here.
Anyway, this summer, the old owners of this house and patch of land that the path runs through moved on or died (not sure which) and it was sold to a new owner, who resides in a town a few miles north of here. She plans to rent it out. When my mother came in from kayaking the other day, my mom attempted to nicely introduce herself to this woman. Please note that my mother is the nicest kindest person on the face of the planet. This new owner was pretty darn rude, leaving my mother to think this woman must have formed a bad opinion of her before even meeting her. She said to my mother, declining to shake hands "I know who you are, and I'm going to be the nasty neighbor and deny you access to the water." She told my mom that the property was to be rented and the water access would be solely enjoyed by the new tenants. Other neighbors have received similar news from her, but NOT in the same mean way as my mother, and other neighbors were given until Sept 15th to cease use of the pathway.

Anyway, my mother offered to pay a lawyer to draw up papers releasing the owner or tenants from any liability as a result of neighbors' use of the pathway, and this woman declined.
Now, as upsetting as the loss of water access is to my mother, she can basically understand why. It is private property, and the woman can do whatever she wants...right? However, she questions whether there is SOMETHING that can be done about this woman denying the whole neighborhood access to something that was generally treated as public for the entire history of development on that plot of land. There is no "deeded right of way" on file in town hall for this path. It's just generally accepted. And in this town, where my mom lives, there are dozens of similar situations - land owned by someone privately, but treated (respectfully) as public access to the water. We thought maybe there was something like...eminent domain, but for private citizens versus the government? I don't know. We're not mom is willing to consult one but only if it seems like there is ANY hope of doing so. Had this woman not been so awful to my kind, respectful, sweet mom, my mom wouldn't think about pushing the situation...but she's also losing a major outlet in her life and alternatives are not readily presenting themselves.

(FYI we've investigated other nearby access points to the water, joining a kayak club such as Portsmouth Kayak Adventures, kayak lifts for her car, trailers which are prohibitively expensive etc. Her car is a new SUV with built in racks that are incompatible with systems such as the Hullavator by Thule. She can't lift the kayak higher than waist height. She may decide to get a trailer, but she'd have to save up till next season for that and miss out on the rest of this year. Also of primary concern is a kayaking location where there is land nearby, such as small tidal islands, for the dogs to run/swim to. Her current location matched this perfectly.)

Any advice relating to legal recourse or maybe alternatives we haven't considered would be welcome. Thanks in advance!
posted by anonymous to Law & Government (14 answers total)
When do the renters move in? Perhaps your mom can bring them a pie, be her terrific and friendly self, and strike a "gentleman's agreement" with them for access through their land. They may not care, and what the owner doesn't know can't hurt her.
posted by nkknkk at 11:38 AM on August 27, 2008

She is very wary of going against what a property owner said, even if the renters don't mind. She doesn't want to break the law, and if someone said she couldn't be on their property, she wouldn't be on their property, even if their tenants said it was okay....unless someone can advise about tenant law? Whether a landlord can say "you can't be here" to my mom but the tenants can say "yes you can?"
posted by Soulbee at 11:42 AM on August 27, 2008

Best answer: In many states, your mother and the others who use the path to the inlet would be held to have established an "easement by prescription." If the public at large uses a path for long enough, and they do it (metaphorically) in broad daylight, the owner is legally treated as though she'd deeded a permanent right of access to the public. The key is that if the public at large acts like it has a right to do it for long enough, the legal system says, hey, you know what, they do have a right to do it. Beach access along specific paths is one of the paradigmatic examples.

You'll need to consult a local lawyer who knows or can look up New Hampshire real property law.
posted by grimmelm at 11:47 AM on August 27, 2008

Best answer: The term you're looking for here is easement. I don't know enough about NH in particular, but in some states if you can prove it was used continuoulsy and openly enough, that might do what you need.
posted by marginaliana at 11:57 AM on August 27, 2008

Best answer: I'm not familiar with NH law, but there are two things that come to mind:

1) Call city hall, the city/town council member that represents that area, planning department, or the like. Someone who would be able to get answers about zoning. Find out if the homeowner in fact owns the inlet. The access trail is/may be a different story, but step 1 is to find out if that piece of shore is actually a part of the title for the land of the house-to-be-rented.

2) That the trail had been used for quite some time without issue may open up into a right of access to the (step 1) publicly-owned inlet. You'd need to talk to a lawyer if you're going to go this route (I am not one), but concepts such as "adverse possession" and easements may come into play. Local laws and ordinances will make this even more complicated, but the long-term effect will be to benefit the neighborhood as a whole.

good luck!
posted by rhizome at 12:01 PM on August 27, 2008

Offer a bit of collective $$ and a legal waiver.
posted by unixrat at 12:02 PM on August 27, 2008

"Traditional access" is something that can get really really sticky, especially in the northeast, and especially where access to water is concerned.

Lawyer up. It's the only way to be sure.
posted by aramaic at 12:13 PM on August 27, 2008

Best answer: She is very wary of going against what a property owner said, even if the renters don't mind. She doesn't want to break the law, and if someone said she couldn't be on their property, she wouldn't be on their property, even if their tenants said it was okay....unless someone can advise about tenant law?

I would think a renter could invite anyone at all onto the property, with or without a kayak, unless some kind of non-discriminatory exclusion was written into their lease.

You must see a local New Hampshire familiar with the area about the easement issues. This is a valid issue and may well give your mom a right to use the path to the water. It depends on New Hampshire law and the specific facts of the case.
posted by JimN2TAW at 12:38 PM on August 27, 2008

Check into local rental ordinance. The owner may not be allowed to do short-term rentals. That would throw a monkey wrench in her plans.

You could also use some legal mumbo jumbo to have the owner prove that she owns the land. The costs alone of doing that (surveys, deed and title searches) may be enough of a deterrent to her.
posted by Gungho at 12:50 PM on August 27, 2008

Best answer: Talk to someone at the Concord office of the Conservation Law Foundation. Get them (or another lawyer versed in conservation and property law to write a little letter to the owner about the merits of a case of a prescriptive easement. Then get the other families affected to donate a couple hundred dollars each and offer to buy a formal easement from the owner, instead of progressing with the adverse possession action.
posted by Rock Steady at 1:29 PM on August 27, 2008

Grimmelm has it. The period for an easement by prescription varies from state to state. In my state it is 15 years.

A further point, which probably varies a bit from state to state: once the owner rents the property, the renters have the full right to decide whether or not neighbors can use the path, unless the landlord reserves that right.
posted by megatherium at 2:31 PM on August 27, 2008

Lawyer up, and try to get the rest of the neighborhood involved, not least because it might not be cheap. My neighborhood just had a similar situation, and won. Yes, it's private property, but the traditional rights may apply, and she shouldn't feel bad.
posted by theora55 at 3:36 PM on August 27, 2008

Best answer: Some people she might go to for help --

Lawyer. Find a local land use lawyer and ask them to help you think through all the possibilities. There are a number of possibilities in addition to the prescriptive easement. Someone (eg, a community group or a state agency) could offer to buy an easement (if the owner was willing to sell one), or maybe some level of government could mandate that an easement be donated to the city or state (this one is a longshot since the house is already built).

The City or County. In addition to a lawyer, another early call should be to a city / county planner, and maybe a city councilmember (county supervisor). The councilmember probably won't know anything, but they could be a great ally under certain circumstances. The planner may have a lot of ideas. They may not be able to help directly with this land, but they'd know who the local players are (nonprofits; local, regional, state, or federal government agencies; etc.) They might be able to find another easement possibility nearby. Cities both purchase land for their park district or get easements deeded through the planning process. It'd also be worth looking at a parcel map. Does that woman's land extend as far as she says it does? The city might be able to help with this.

The State. Hmm, bummer, according to Surfrider, "New Hampshire is one of five ocean coastal states (Delaware, Maine, Massachusetts, New Hampshire and Virginia) that do not own the intertidal zone." In California, the public's access to the coastline is established by state law, and under the guidance of the California Coastal Commission & California Coastal Conservancy, a lot of public access easements have been donated or purchased.

At a state level, apparently the New Hampshire Fish and Game Department (NHFG) is the lead agency for public water access, also according to that Surfrider page. Maybe they'd purchase an easement for the community or give money to a non-profit to do so. She might just call and find out how their public access program works.

Non-Profits. Local nonprofits, land trusts, or community groups might be able to purchase an easement on the land or otherwise convince her to let access be allowed. Is there a coastal trail organization? A kayak-advocacy organization? They might have ideas.

This could take a lot of persistence, so good luck! I'd feel free to call a bunch of random people and ask them to point her in the right direction through the maze of groups who might be able to help.

By the way, the tone of your email is great, and it will help her make progress if she stays positive, fair-minded, and public- or community-spirited. She should avoid sounding self-righteous, indignant, cheated, oppressed, or feeling a sense of entitlement, not that she was going to sound that way (even after telling the story 15 times).
posted by salvia at 11:00 PM on August 27, 2008

Let us know what happens.
posted by LarryC at 6:49 PM on August 28, 2008

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