Do you have a shared driveway with a neighbor and have been having problems resolving the use of it? Have you recently purchased a home or other building that has a shared driveway with a neighbor, perhaps not realizing that the driveway you need to use was shared? Are you considering purchasing somewhere where you have been advised that a shared driveway is present? Shared driveways and legal use of them called easements can become common sources of property disputes in Massachusetts. Read on to learn more about easements and shared driveways and how to resolve potential disputes about their use or misuse.
What is an easement?
An easement is a legal right to use part of someone else’s property. The holding of an easement does not alter the ownership of that land, but it does confer rights to the use of it for certain prescribed purposes. By far the most common types of easements are shared driveways. Note that not all shared driveways are legally designated easements for one or more property owners who share the use of the driveway. There are various ways that a shared driveway may already also be an easement, or may become an easement. If you are contemplating purchasing a property with a shared driveway and are unconvinced about the real estate agent’s vague description of its legal status, it can be worthwhile talking to a real estate attorney to determine how you stand legally if you purchase the property. This may be resolved by an inspection of the title deeds, or a land surveyor can be hired to discover the legal status of the shared driveway.
Easements may exist in these situations:
- An easement has been granted as part of the title held by the property owner. This means that the driveway or other property involved may in fact be owned by the neighbor, but legally it can still be used for certain purposes by what is termed the ‘easement holder’.
- An easement may be legal if the shared driveway is the only way that access to the home can be made. This is known as easement by necessity. This sort of easement may not be recorded officially in the property title deeds of the person who needs to use the driveway and this can sometimes be a source of frustration if the neighbor who owns the land the driveway is on attempts to block access to it or tries to prevent the neighbor using it.
- An easement may be granted if, over many years, the shared driveway or land access has been used by the non-land holder openly and continuously without dispute. The term “notorious use” is used in these circumstances meaning that the person who has been using this particular access has known that there was no legally defined easement. An easement may then be granted in court if the person or persons who have been using that land apply for what is called a “prescriptive easement”.
How shared driveway and easement disputes may be resolved
Once a property has been purchased, a shared driveway that has become a source of disputed use may first be resolved by negotiation with the property owner, or with the easement holder, if it is the property owner who feels that the use of the easement is being overused or misused.
The first step is to ascertain whether there is a legal right to an easement or not. It is not uncommon for a shared driveway to not have an easement granted. If an easement has already been granted to the non land owner of the driveway, but the owner of the driveway or the easement holder has been parking their car or cars in the driveway, thereby blocking access to either home or garage, or parking the car or cars in such a way to make access difficult, then this sort of issue should be rectified by pointing to the legal rights and responsibilities of the easement holder. An easement holder has the right to reasonably use the driveway to access the property, but also has a responsibility to not block access to use of the driveway to the rightful owner.
Normally, in these circumstances, with documentation showing the legal holding of an easement (e.g. by showing copies of the correct sections of a property deed), careful and polite negotiation between easement holder and land owner may help to resolve the issue. If relationships have crossed a boundary, making resolution difficult, then the easement holder (or property owner, depending who is the aggrieved party) may pursue the case through the local court with the help of a property law attorney.
The shared driveway does not have a discernible easement: what can be done if the driveway is being blocked?
If the shared driveway is the only way the non land owner of the driveway access his or her own property, i.e. they are landlocked, then an easement by necessity can be sought by the party who is being denied access to their home. Again, careful and polite negotiation with the neighbor who is the driveway owner, may resolve the issue, even if it is only temporarily, but it is a sensible move to apply for legal easement status through the court to ensure the issue doesn’t become a problem in the future. Again, consultation with a real estate law attorney should be the first step in discovering what can be done to ensure an easement dispute is resolved.
The driveway is held by a third party and not by either or any of the property owners who share use of it
In some, rarer cases, a driveway may be owned by a third party, for example a local government entity or a farmer, and this may not be realized by one or both home owners who are sharing use of the driveway. When blocking of the driveway is making access difficult, and communication with the party being antisocial hasn’t led to a resolution, then the driveway land owner will need to be contacted. As in the other examples above, finding out whether easements exist to the various property owners sharing access to the driveway and if so, then the general legal use of easements, i.e. responsible use and a commitment to not block access should be respected by all sharing common access.
For more information, visit our website or contact us for a free initial legal consultation today