New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Adjacent Lots May Be Deemed Merged by Conduct

Newbury v. Landrigan
No. 2012-039, 8/21/2013

Starting in 1935, two contiguous lots were deeded by the town to a landowner. Thereafter, the town also deeded four additional contiguous “cottage lots” to the same person.  In 1961, a plan was recorded at the Registry of Deeds showing no internal line between the original two lots, but maintaining the lines of the “cottage lots”.  In 1972, the landowner sold a portion of an original lot to an abutter, and acquired a small additional contiguous parcel from the town. In 1973, the town began assessing the entire contiguous land as a single parcel for tax purposes.

 

The current owners obtained title in 2004 by a single deed that described all of the parcels by their original numbering system, but described no internal lines. Between that time and 2010, the owners recorded three survey plats of the land showing internal lot lines, and eventually executed two deeds, purporting to create two separate lots. Because none of the three survey plats had been reviewed by the local planning board and no subdivision approval had been obtained for the two lots, the town began an enforcement action, seeking a declaration that the deeds created an illegal subdivision.

 

The Superior Court found this to be an illegal subdivision, and the Supreme Court affirmed. The landowner argued that the doctrine of “merger by conduct” had been abolished as a result of the holding in Sutton v. Town of Gilford, 160 N.H. 43 (2010). The court found that the doctrine had not been abolished and that “…owners can effectuate a merger of contiguous, non-conforming lots, independent of any town ordinance by behavior that results in an abandonment or abolition of the individual lot lines.”

 

In this case, the factors cited included the description of land contained in the deeds in the chain of title (referring to the land as a single tract or parcel of land), the depiction of the land lines shown on the plan recorded by the original owner of the lots (which implied the old lines had been abandoned), and testimony at trial regarding the actual use of the property by the current and former owners as a single lot rather than as separate lots.

 

The case is important to governing bodies as they evaluate requests filed by landowners pursuant to RSA 674:39-aa to “unmerge” lots previously involuntarily merged for tax purposes. The actual conduct of the current and former owners of the properties is indeed as important as the description of land contained in deeds in the chain of title.

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