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
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
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 www.thinkglink.com