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Driveway On Easement

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 745

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A ThinkGlink reader had her driveway on her neighbor's land with an easement. New neighbors have forced her to move her driveway to a less than optimal location. Ilyce and Sam explain that the easement language is key to understanding this dispute.

Q: We purchase 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.
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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.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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