Dear Counselor: New neighbor wants changes

Question: My neighbor and I have adjacent gravel driveways. But I use a small part of my neighbor’s driveway to enter my own. We both enter at the same point, but after about 10 to 15 feet, I turn to the right to use my own drive, and he stays straight to access his property.

I have used the driveway in this manner since I moved to the property several years ago. From what I know, the prior owners of my property used the driveway in the exact same way. My old neighbor moved from the property this past spring, and the new property owner is looking to improve the driveway. He wants me to create my own driveway, which would mean that I would need to remove some mature hedges and other landscaping that has been there a long time. I do not want to do that.

He said that if I continue to use the driveway then it is only fair for me to help him pay for the improvement on it. I am most concerned that after he paves the driveway he might just block my use of it. Can he block me from using the driveway? If he goes through with the paving of the driveway, will I owe him something for this?

Answer: It’s always the new neighbor who disrupts the way of the past. You need to gather more information about your property and your neighbor’s property before you make any decisions. From your question, it sounds like you have an easement over your neighbor’s property, but it is unclear what type of easement you have.

Generally speaking, an easement is the right to use the land of another. Although a person may own real property, that doesn’t mean that his or her rights are absolute. Another person, like the owner of a neighboring property, may have a right of use. An easement “runs with the land” which means that the right can transfer with the sale of a property and extend to future owners.

The terms of an easement are usually set forth in the legal description of real property in the grant deed. For example, your neighbor’s grant deed that he recently received with the purchase of the property might include language that says that you have the right to use the shared driveway. If you have an express easement over your neighbor’s property, he cannot interfere with your use of the land. So that means that he cannot block your access to or interfere with your use of the driveway.

Even if you do not have an express easement, it sounds like you may have acquired a right of use by “prescription,” which refers to longstanding use of the property. Your several years of using the driveway — and the previous owner’s use of the driveway as well — may have ripened into a “prescriptive easement” over your neighbor’s property. When a person can show that the land of another has been used in a certain manner over a certain period of time, it may be possible to obtain a prescriptive easement over that land.

Like an express easement, the prescriptive easement prevents your neighbor from interfering with your use. But you will need to go to court to prove that you meet all of the legal requirements necessary to obtain a prescriptive easement, and you will need a court order for the easement to become part of the real property.

Assuming that you have an easement over your neighbor’s driveway, you, as the easement owner, are responsible for the maintenance and repair of the easement. But an easement owner is not responsible for the cost of improvements unless there is an agreement saying otherwise. So your neighbor should bear the costs of repaving since this is an improvement he wants. If, however, the driveway remains the way it is and needs repair, you may have to contribute to the maintenance and repair.

Regardless of what you find about the type of easement you may have, you should seek the assistance of a lawyer with experience in real estate law. Proceeding with legal action of this type is not simple, and in many instances, problems of this sort can be addressed between attorneys without the need for court action.

Dealing with neighbors can be difficult, and sometimes a new neighbor can stir things up. Before you make any decisions, you need to know what your rights are. So get some help to see exactly where you stand, and know that easement issues can be worked out with a little cooperation.



Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.

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By |2019-01-09T18:37:28+00:00January 3rd, 2019|Dear Counselor|Comments Off on Dear Counselor: New neighbor wants changes