DerryNews.com, Derry, New Hampshire

August 8, 2013

About the Law: Trust the law, not the agent

Andrew Myers
About the Law

---- — We made an initial offer on a house that has an unpermitted addition. The present owners built an addition which goes within 7 feet of the neighbor’s lot line. It’s in a wooded area, but the zoning ordinance requires 15 feet clearance.

The Realtor isn’t concerned, but should I be?

There’s much reason for concern. The offer should be taken to an attorney for review before signing.

Insist on a condition that the sale not be completed until nonconformance with the setback requirement be addressed by the seller. Place the burden on them.

There’s a law called an equitable waiver that you might be able to get away with later, but why put the burden on yourself? This law requires that you prove that the violation was not noticed until substantially completed, that the violation was not in bad faith, that the violation does not constitute a nuisance and that the cost of correction so far outweighs any public benefit to be gained that it would be “inequitable” to require the violation to be corrected.

Trumping the above conditions, waiver can be granted if the violation is over 10 years old. But, the burden is on the property owner. Why buy a problem? Insist that the sellers make it right. Otherwise, the municipality can demand removal of the nonconforming use and charge daily fines.

Why would the Realtor care? Your name will be on the deed. You will have bought the problem. Insist on correction by the present owner or look around for another property.

After being rear-ended in traffic on the Interstate, I was taken to the hospital. I’m OK now, but the other driver’s insurance company is questioning whether I was wearing a seat belt.

I was stopped in traffic and their driver admitted fault. Does my wearing or not wearing a seat belt make it OK for them to deny my claim?

Everyone knows it’s a good idea to wear seat belts and that it is the law in Massachusetts. New Hampshire law only requires those under 18 to buckle up. But, that does not answer your question.

The issue of whether or not seat belt use can be applied to a civil claim for injuries is entirely different.

In Massachusetts, “Failure to wear a properly fastened safety belt shall not be considered as contributory negligence or used as evidence in any civil action.” This is a statute, MGL c. 90, Sec. 13A.

The same result applies in New Hampshire. But, not by statute. Instead, it was the state Supreme Court that held that evidence of a party’s failure to use a seat belt is inadmissible to show negligence where the nonuse may have contributed to the party’s injuries but was not a cause of the collision itself. The 1993 case of Thibeault v. Campbell is still good law in New Hampshire.

Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.