Easement Talk: Frequently Asked Questions About Driveways and Deeds

An easement is physical access to property, in legally recognizable form.

Most everyone has seen a shared driveway. This typically involves an easement. With an easement of this kind, each owner needs to use the same part of the property, and the parties have a legal, mutual agreement that allows them to share driveway access.

How Is a Shared Driveway Easement Created?

The parties typically write up a written contract to lay out their rights and responsibilities, with a lawyer drafting or reviewing their document.

A shared driveway easement would describe the precise location, path, and measurements of the driveway, who maintains the pavement, who removes snow and leaves, how costs are shared, and other agreed-upon expectations between the neighbors. It would declare the right of each owner to access, and include any restrictions on use or parking. It would state the parties’ names and addresses, and the deed preparer’s name. It should state any payment that may have been made in return for the agreement.

A right of way is known to title professionals as an easement appurtenant. Once it exists, it will “run with the land.” So, it doesn’t just bind the current parties. Future owners will receive the deed subject to the easement.

Once it is ready to record, the parties sign to demonstrate their agreement and the date of their agreement. The parties should have the easement deed document notarized and filed with the county recorder of deeds.

The easement gives someone other than the owner a right to enter, pass through, or use a segment of someone’s land for a certain purpose. Easements provide rights of access, but they leave the deed holder’s ownership rights fully intact.

There is no need to reinvent the wheel. To start, download the easement deed form for your state. Courts, legislatures, and agencies do modify or restate legal provisions from time to time. At Deeds.com, we update our forms regularly, so you get exactly what’s required.

What If There Is No Written Agreement on Record?

The legalities of a shared driveway may not matter, until someone wants to sell the home with the easement. That is, an easement may become an issue when the time comes for a deed transfer.

Not all shared driveways have written, recorded easements. There’s such a thing as an implied easement. For example, if two separate deed holders have driven on a shared driveway for many years, then a driveway easement is implied. This is in contrast to an express easement, which is written.

Imagine that nobody ever recorded an easement. You can anticipate that buyers might reasonably ask about the strength of their rights to use the shared land.

In this case, it’s a good idea to draft an easement. Doing this will set forth a formal transfer of rights. So, speak with an attorney to hash out the details — whether you’ll need permission granted by the owners to each other, or simply from the title holder to the non-owner.

You’ll create your easement deed before you get ready to sell. And you’ll need to have it recorded, so it’s obvious in a title search.

You could create the easement in your deed transfer itself, when you sell your home. An easement included in your regular property deed will make the access rights formal and public. That said, an easement must be “granted” by the title holder to the land — who might be partially or wholly your neighbor and not yourself.

Therefore, it would make sense to create an easement deed that’s a separate document. It will demonstrate the agreement of the other land owner.

Now, you might ask, could I and the folks next door agree to a more practical boundary between the properties than the ones described on our deeds? That could be possible too. Your state law might have adopted a consentable lines doctrine. That’s a legal custom that says the borders you and the abutting property owner treat as real can legally become the new boundary lines.

In any case, it’s essential to hire an experienced attorney before officially affirming or modifying access rights. Also, the lawyer may advise you that a separately recorded easement is the document that will best include the information needed for financing the property.

What if you and the neighbor disagree on where the access is? Contact an experienced real estate lawyer quickly to preserve your rights.

Troubleshooting: What If the Neighbors Do Not Agree?

Sometimes, the use of a shared driveway area can lead to disagreements between the people involved. They’ll need to resolve the matter by going through a number of steps:

• The parties need to know their legal rights. This begins with reviewing deeds, surveys, and title insurance (if either or both parties have it).

• If a recorded deed including an easement (or a separate driveway easement) exists, it will describe the easement holder’s legal right of access.

• Assuming the easement runs with the land and was never time-limited, the easement holder must, under the law, be allowed to continue enjoying the right of access.

If each property has a recorded survey, then the documents should be compared. Any relevant differences should be noted. The parties will need to know which survey is the true and accurate representation of the land and its easement. Resolution could depend on hiring licensed experts to create a new survey that everyone involved will agree upon. Potentially, a party will need to file a petition in the local court system if the deed holders are unable to come to an agreement after the new survey work is completed.

Think you’ll need to go to court? First, read our outline for resolving a property line dispute in 5 steps.

If no written easement is available, a right of access could be implied based on longstanding use of the access route. If an easement is implied, or if it’s a necessity so that the other homeowner can get in and out, a court could find that the neighbor has a right of access. A party might alternatively make a case for adverse possession or a prescriptive easement based on long-time use.

The court case is normally a last resort. Court resolutions are time-consuming and expensive. But in some cases, courts have to weigh in and settle real estate disputes. A court decision is a solid, lasting way to clarify the legal rights and responsibilities of all parties.

Sometimes neighbors encroach on each other’s property. A property owner who doesn’t mind could be said to acquiesce to an encroachment. Then, the owner of encroached-upon land can lose title to that area, with the encroacher gaining ownership.