Easement Agreement Determines Property Use

Added April 13, 2007 by Ilyce R. Glink and Samuel J. Tamkin

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Summary: Even if you have an easement on a property, the property owner retains ultimate rights to the property. So if your driveway is on land with an easement, but you don't own the property, it may be a problem. While you may be able to come to an agreement with a current neighbor, that could change with new neighbors. The easement agreement language is key to understanding this dispute.

Q: We purchased a house with a steep winding driveway. We have an easement to the land beneath the driveway, but the people who purchased the lot next to us actually own the land.

They bought this property after we bought ours. They built a big utility on the top portion of our driveway forcing us to move our driveway over and making our drive down to our house steeper.

We complained to the zoning commissioner. He said they have a right to build anything they want on the easement land, since they own it, but that they must give us some kind of access to get down to our property.

Is this fair? We live in snow country.

A: The answer to your question probably lies in the language of the easement agreement.

Generally, an easement is a type of interest given by one landowner to another. For example as in your case, a neighbor gives an easement to allow a neighbor to access his land, to get utilities to his land, to reach a landing area for a boat, etc.

Most easements are written and they are recorded against the title of the land that will be burdened by the use. In your case, the easement should be recorded against your neighbor's land. You should get a copy of the document.

Once you get the document you should review it to determine if your neighbor has the right to relocate the driveway or to make other uses of the easement area that would impair your use of the driveway. If the document does not allow your neighbor to relocate the driveway or impair your use, you have right to complain.

Unfortunately, if they have the right to change the driveway under the terms of the easement, you'll be out of luck. If you have trouble figuring out what your neighbor can or can't do under the terms of the easement, talk to a real estate attorney. If the document has been well-drafted, the attorney should be able to tell you quickly what can and can't be done. If the document isn't well-drafted, your attorney may have to do a little research into easement laws to give you his opinion.

It's unfortunate that your neighbor wasn't willing to discuss this issue with you and come up with a solution that could work for both of you.

April 13, 2007.

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