Q: My husband and I live in a home on a 3-acre tract of land. The home and land have been with my family for as long as I can remember.
The property was landlocked but it has an easement across a neighbor’s land to a road on which we have a driveway. My family is the only one to have ever used the driveway. The neighbor’s property has now come up for sale and they are planning on dividing the land for use with mobile homes and other homes.
Can new owners of the adjacent property use our driveway to get to their homes?
A: The most important piece of information you included in your letter is that you have an easement to get to your home.
An easement is a right given by one owner of land to an adjoining owner to let him or her use a portion of the owner’s land for a specific purpose. The easement can be exclusive or non-exclusive. You can have an easement adjacent to your land to allow one or more neighbors to access a lake, to access a main road or to even access a bike bath or ski trail.
The easement document must set forth the specific area that is subject to the easement. Sometimes it can say “the east five feet of my property” or the easement might have a survey attached, but it should state with some specificity the exact location of the easement.
When an easement is given it should always be recorded with the office that takes care of maintaining and processing land titles and deeds in the area. That way, the world will be put on notice that you have an easement and what the easement is for.
You will need to dig out the easement document to find out what it says. If the easement is for your exclusive use, your new neighbors should not be able to use it. If the easement is non-exclusive, then your neighbor can grant additional easements to their buyers (who will be your new neighbors) to use the driveway.
When you find the easement it should show the location on which you have had the driveway to your home. It might also indicate that you have the obligation to maintain the driveway and it even might allow the neighbor to use the driveway.
If the neighbor has the right to use the driveway, he may have the right to assign that right to subsequent owners of his land. However, if subsequent owners’ use of your driveway would impair your use and enjoyment of the easement, you may have a right to limit their use of the driveway.
Once you’ve found the document, talk to a real estate attorney about your easement and any rights that your new neighbors might have to use it. You may want to talk to your current neighbor and find out what plans he has for the land. Finally, you can also talk to your town, village or county planning department to determine whether a new development next to you would need to outline their plans to access their land and whether the town, village or county would require them to have separate and new driveways that would not make use of your driveway.
When it comes to land development, there are times that town, village or county requirements might be rather strict. In these cases, the developer might be required to develop the entire area, and build new roads and streets before any lots could be sold or homes built.
If you can’t find the easement document, because no document was ever recorded, you probably still have the continued right to use the driveway but the terms of the easement that you would have received would need to be construed by the laws in the state in which you are located.
But in this case, be sure to talk to an attorney that has plenty of experience in land development to make sure you protect your rights to the easement and driveway.
Dec. 31, 2004.
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