Content of the material
- Disclose the property rights
- Can a Driveway Easement Be Revoked?
- The Bottom Line: Understand The Landlocked Property Law Before Purchasing
- Property easement rights : how do they arise?
- What Is “Right Of Way” And How Does It Differ From An Easement?
- Divide the Driveway
- Owners Can Negotiate
- How do I allocate costs of repaving a driveway between my two neighbors with easements to use it?
- How to Find out If You Have an Easement
- Can You Build on an Easement?
- Building Fences on Easements
- Building Hot Tubs and Pools on Easements
- Planting Shrubs and Grass on Easements
Disclose the property rights
Kasprisin said he always discloses when a property has a shared driveway and often must explain to buyers what this means. “Sometimes it’s not an issue to the buyer until we make it an issue by letting them know this is what might happen,” he said. “It doesn’t really bother a buyer until they find out what the liability is or what the problems that could arise are.”
Easements are recorded within the county where a property is located, so a title report or a property survey should outline a prospective buyer’s ownership rights. Einhorn, Barbarito, Frost & Botwinick, a Denville, New Jersey, law firm that handles real estate cases, says that homeowners also can check their title insurance policy about any easements regarding the use of or access to the driveway.
However, there are neighbors who try to exercise more rights than they should upon learning they’ll have someone new next door. Kasprisin encountered this situation selling an 1895 Victorian home in Joliet, Illinois. The neighbor took the position that he owned the driveway because he’d lived on the street longer and told the buyer, “Just make sure that your people don’t park in the driveway,” the agent said.
It turns out that the property line ran through the center of the driveway, giving the buyer the legal right to use half of it, just like the seller had. With the help of a real estate attorney, both parties drafted a maintenance agreement that outlined maintenance, liability, and access. (As of January 2020, 21 states require that a real estate attorney be present at closing, whereas other states require an attorney only to prepare certain documents.)
“Some of it was just basic courtesy that I believe should go unsaid, [such as] promise not to park in the middle and not leave your car there on a Saturday night,” Kasprisin said.
Can a Driveway Easement Be Revoked?
Driveway easements are often more formal than a simple verbal acceptance or agreement, so it is unlikely that one day a driveway easement will be in place and the next day it will not. That said, it is possible to abolish both informal and formal driveway easements. To revoke an easement usually all parties have to agree, the benefiting party has to abandon their claim and use, or a professional, legal order has to end the easement.
If all the property owners and users of the easement agree that the easement should no longer exist, the easement can be revoked. This situation is one of the rarer forms of easement abolishment. Sometimes this end to an easement might occur when benefiting parties gain or build a different access route to their property or the area that they need to reach. This type of revocation might also occur if the reason for the initial easement no longer exists. For example, if an easement provides access to woods for hunting to a non-property owner and the woods are destroyed, the reason for the easement would no longer exist and the property owner and easement user might mutually agree to end the easement.
More often, the person or people who use the easement will simply stop using it for a certain amount of time with no clear intent to use it in the future and the property owner who allowed the easement can claim abandonment. Abandoned easements seem to serve no real purpose and can be more officially revoked if the property owner desires it. Sometimes easement abandonment might require legal or other professional intervention to officially recognize the abandonment and end the easement.
Finally, sometimes disagreements over an easement may end in court or other legal proceedings to formally abolish the easement. Usually, for the easement to be revoked in this way, both parties will have to have legal representation and professional intervention because they cannot reach an agreement about the easement on their own.
The Bottom Line: Understand The Landlocked Property Law Before Purchasing
There are pros and cons to buying landlocked property. You will need to take the steps to gain access to your land, and that could involve a long negotiation with your neighboring property owner or even a legal fight. You’ll have to determine if the reduced price that usually comes with landlocked property is worth this potential hassle. Visit the Rocket Mortgage® Learning Center for more information and tips when it comes to different property types and how to gain access to one.
If you’re ready to buy, you can get started online or give us a call at (833) 326-6018.
Property easement rights : how do they arise?
At this point, you may be wondering: Is there a utility easement on my property? Is there some kind of a sewer easement on my property I’m not even aware of?
It’s possible. An easement is created in three primary ways: express grant, prescription, and implication.
What Is “Right Of Way” And How Does It Differ From An Easement?
Depending on the layout of your land, you might only need a right of way easement. This is a specific type of easement that allows you to travel over another person’s property. You might need a right of way if you can’t access a public road from your property without traveling across another owner’s land.
For instance, maybe you can get from a public road to your property by traveling down a paved drive that happens to run down your neighbor’s land. If your neighbor agrees to give you access to that driveway, you’ve now gained a right of way easement.
An easement is a more general term that gives you the right to use another person’s property for different uses. If you need to build a driveway that connects your property to a main road but can’t do that without encroaching on a slice of your neighbor’s land, you’d need an easement to build that driveway.
With a right of way, you can travel across someone’s property, but you can’t use that land or build any road on it.
Divide the Driveway
However, if you’ve had difficulties with your neighbors about use of the driveway, It might be a better option to divide the driveway before selling.
The divider must be on your side of the property and provide enough room for both users. You’ll need a professional survey for an accurate measure. Your neighbor may want to hire their own surveyor as well.
Depending on the width of the driveway, some dividers include a narrow raised garden bed of pressure-treated lumber, chain-link fence in asphalt, or edging stones atop existing concrete.
Owners Can Negotiate
Owners can negotiate easement payments, although their position is somewhat compromised. A city that is buying easements for a new sewer system has the ultimate right to take the easement if no agreement is reached. It is much easier and simpler to reach an agreement than file a court action so the owner does have that leverage. In any event, an owner would do well not to accept the first offer from the city. An owner may also be able to persuade the city to slightly alter the path of the sewer lines if doing so will cause less disruption to the property. An owner is entitled to be compensated for the loss of use of the property as well as damages for loss of trees and vegetation.
How do I allocate costs of repaving a driveway between my two neighbors with easements to use it?
Because of the configuration of our properties, my two neighbors have easements to use my driveway. I bought the house knowing that this was the case. However, with all the traffic along my driveway, the road is getting a bit torn up and needs to be repaved. Must I bear the costs of repaving the easement by myself?
Let’s start with some background. Private easements are a legal right to use someone else’s land for a particular purpose. If your title is burdened by an easement; or in your case, two easements; you have no choice but to allow your neighbors to use your driveway.
When you bought your property, your title insurance company and attorney probably alerted you to the existence of your neighbors’ easements. Sometimes, an easement-maintenance agreement will also be on file with the county clerk. Such an agreement would address this very issue; without it, you have no crystal clear means of forcing your neighbors to pay their fair share, since you own the primary parcel.
In a perfect world, your two neighbors would recognize the problem, just as you have, and offer to divide the costs in three ways. If they don’t come to this solution on their own, your first step should be to try to negotiate this arrangement with them. If one or both of them refuse, you have a few options.
Your first option is to do nothing, allow the roadway to further deteriorate, and essentially force them to the bargaining table. The downside here is that this will take time, and you also want to have a nice driveway for yourself.
Another option is to have an attorney write a letter to both neighbors essentially threatening to cut off their access to the driveway if they do not agree to a reasonable contribution. This will surely anger them, but might frighten them enough that they contribute at least something to the renovation effort.
Your final solution is to actually make good on that threat and block their access to the driveway. This is playing hardball, because a court of law would surely force you to remove the barrier to the driveway if your neighbors have a rightful easement allowing them to use it. But it would force your neighbors to retain attorneys to get a court to order your compliance. The time and money involved in such an action might convince them to come to the table with at least some cash to help you pay for the cost of repaving the road.
How to Find out If You Have an Easement
Most homeowners should already know that their property contains an easement as it is right there in the title documents when you buy the house. If you cannot find your title documents, check your county website's tax assessor section. Likely you can find documents relating to your property, including easements.
Can You Build on an Easement?
Yes, you can build on a property easement, even a utility easement. Yet if you value peace of mind over everything else, not building on that easement is the best way to go. The dominant estate owning the easement may need to access the easement. Anything, from a house addition down to fences, shrubs, and children’s playsets might need to be removed in this event.
Always check with your local municipality to ensure your plans to build on a property easement don't infringe upon any necessary access points or property borders.
Building Fences on Easements
Fences regularly get built along or across easements. Homeowners who do this must expect the chance that their fence might be pulled down by a dominant estate (utility company, for example). A few utility companies state that, as a courtesy, they will do their best to reconstruct the fence.
Building Hot Tubs and Pools on Easements
Above-ground hot tubs and pools are also subject to removal. In-ground pools are more problematic, not only because they cannot easily be removed but because they may interfere with in-ground easements. It would not be wise to put an above-ground hot tub or pool on an easement.
Planting Shrubs and Grass on Easements
Bushes, lawn, and other shallow-rooted shrubberies may be planted on easements. Trees and other major vegetation should not be planted on easements. One common scenario: you have an above-ground garden planted on an easement, covering the manhole to the sewer main. Workers regularly access this manhole, working around the plantings. Shrubs are removed only in key areas.