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Easements and Rights-of-Way Question


By Ilyce R. Glink and Samuel J. Tamkin

Summary: Easements and rights-of-way are a constant matter of dispute for property owners. A reader asks a question about building a driveway near a neighbor's property.

Q: In 1963, my father purchase two and a half acres of land in Oregon that was landlocked from the county road.

One neighbor gave him a signed easement across the end of his property so my father would have access to the road. Along another side of the property, my father and a different neighbor built a shared driveway along both properties.
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The arrangement with the neighbor appears to have been a verbal agreement. Three feet of the shared driveway is on my fatherís land. However, my father and this neighbor had a falling out and the neighbor built a fence right up against the driveway. My father, not to be outdone, planted trees on his side. Needless to say, the driveway is extremely narrow and hard to maneuver without knocking down the fence or running into the trees.

My father passed away a couple of years ago and left the house to me. We recently surveyed the driveway and the middle of the road is on the property line. I now want to change the angle of the driveway and place it deeper into our property and reclaim the original three feet from the old driveway. Can I do this?

A: From the description in your letter, itís hard to tell exactly where the driveway goes, and how you can access the county road. Weíre going to assume the narrow driveway does not extend all the way to the county road. The easement that was given to your father allows the last portion of the driveway to access the road.

You donít seem to have an issue with the person who gave the easement to your father. Rather, the issue is with the neighbor with whom you share the driveway. And, letís assume that you have ample land on your side of the property to widen the driveway.

Your real question should be whether the shared driveway can continue to be used even though the easement your neighbor gave your father was verbal.

Although your father and your neighbor agreed to the shared driveway without a written agreement, the continued right to use the driveway may still exist. However, you will have to confirm this with a local real estate attorney who has access to the property and other documents.

From an intellectual point of view, your question would be a great law school property class final exam question.

On the one hand, you have to determine if the grant and continued use of the driveway between these neighbors gave each of them a permanent right to use the driveway.

Under some circumstances, the answer would be yes. If the driveway was the only means of ingress and egress out of your fatherís property, itís likely that the building of the shared driveway could also be construed as an easement that was granted by the neighbor to your father and that the easement could not be terminated.

You would not, however, have the right to widen the driveway further into your neighborís land. You could widen it on your side provided that you are able to remove the trees and donít need other permits from the county to do the work.

If you have other means of access to the property, other than this shared drive, and you and your father ceased using the drive and the trees have overtaken the road, you may have a problem. If your father planted trees on the actual driveway (on his side) and caused the driveway to be impassable, his actions may have terminated his right to the continued use of the driveway.

Again, there are many technical issues involved. You should take the survey along with any title documents you have relating to the property to a real estate attorney and discuss these issues further.

Good luck and I am sorry for your loss.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glinkís 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 Ilyceís website




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