Easement/Shared Driveway on Investment Property?

Question

Hello -

I am in process of closing on a new investment property and the driveway is shared (i.e. my neighbour and I need to use the same driveway to get to our individual backyards). The driveway is 80% within my property boundary lines and 20% within theirs.

There was an easement established over 20 years ago that gives my neighbor the right to use the driveway to get to their backyard. Also, I am speaking with the survey and title company to clarify the exact coordinates of the easement and boundary as well as confirming if anything has been filed with the deed. But its unclear if a) the easement was paid for and b) who is legally responsible for the snowplowing, Mx of potholes, etc.   I'd like to set up some agreement to ensure its clear who pays and does what.

Does anyone have any experience part or all of this?

Abi O. · Answer

This is great - Thanks Steve -

Some responses and some further questions

1) The coordinates of the easement was included in my survey. The survey company also sent me a copy of the deed from where comments about the easement was verbally written. If this is what you mean by do i "have" it, I believe the answer is yes. Also, was there something you were suggesting I clarify once having it?

2) Your point about whether it was paid for before is a good one as I was advised by others to charge the neighbor to use the driveway and was looking into how that was possible since I had never heard of that before. But to your point, that only works if there was no easement and thus no right of my neighbor to use the driveway. Since there is an easement, it is clear I need them as much as they need me...unless the % of easement on each of our property (i.e. the 20% vs 80%) matters in terms of negotiating leverage?

3) Did you have any advise re: setting up a mx agreement? Wondering how you would suggest who manages and pays for the mx (i.e. snowplowing, fixing potholes) without one?

Steve McGovern · Answer

Yup.  Plenty.  Both on the 'research' side and on the 'ongoing maintenance' side.  This is quite common in tighter suburban, and urban areas.

Do you HAVE the Easement?   Did you get it from the Atty, Title Co, or whomever-- or have you not quite yet started the legal DD?

Unfortunately, MANY of these were initially done on a handshake and then memorialized later. Others, you may find that the Developer tossed them into the site plan (esp during the 20's, 30s as cars became commonplace.)  In these cases, maintenance was rarely contemplated, but newer drafts will usually do so, if a proper Atty or Title Co. was involved.

-- one thing to take out of your head-- for MOST easements, 'whether or not it was paid for' is entirely irrelevant to you today.  It just doesn't matter any more.  If you also need the 20%, then you don't have a driveway without them, same as they don't have one without you. Plus, your predecessors agreed... and that's that.

One exception to that last statement is an Easement in Gross-- because it runs to the party NOT with the land. If you find that it's an Easement in Gross, then you can maybe charge a new party for the continued use of the access way. Consult an atty.

No matter what, you need to get your hands on that doc.  if you're ADAMANT that there be an ongoing maintenance agreement, you can make your purchase contingent upon the Seller acquiring it from the neighbor, but don't be surprised if you lose your purchase over a move like that.

Hope that helps.

Steve