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drbeth · Jun 17, 2008, 12:42 PM

Hi, I am selling my house where I have lived for 18 years. I own the driveway, but allow our neighbors to use it as their driveway as well to get to their garage. There is no written easement. They have lived there about 4 years. We have someone interested in buying our house but they want our neighbor to sign a paper saying they don't own the driveway, and they are OK with 6 months notice if our buyer wants to fence it in. My question is -can the neighbors claim squatters rights to our driveway? And prevent the new buyer from fencing it? Thank you for any help you can give me.

N0help4u · Jun 17, 2008, 12:45 PM

No the neighbor can not claim squatters right simply because you were kind enough to allow them to park in YOUR driveway. They would have to prove about 5 things to claim squatters rights. Two of them being that they helped with the upkeep of the driveway and helped financially like paid toward taxes.

ScottGem · Jun 17, 2008, 12:46 PM

They can certainly claim that you have granted them an easement to access their garage (its not called squatter rights, nor do I think it comes under the heading of Adverse Possession). They can refuse to sign the document requested by the buyers. But if they do, then they can no longer prevent a fence.

If they do refuse to sign, you may be able to take them to court to rescind the easement.

LisaB4657 · Jun 17, 2008, 12:53 PM

I don't think there's been an easement granted. An easement is an interest in property that has to be in writing in order to be valid. The only way they might have an easement is if they have no other way of getting to their property.

There is definitely no adverse possession since they used the driveway with your permission. Their use of it would have to be "hostile" to qualify for adverse possession.

froggy7 · Jun 17, 2008, 12:56 PM

This is a tricky situation. If the only way for them to get to the garage is to use the driveway, they can probably get a permanent easement. And if the property is something like a flag lot, they definitely can, since you can't have a landlocked property in most jurisdictions. So the two questions that need to be answered are: why has the neighbor been using this driveway, and why would the new buyers want to deny that? This is the kind of thing that I would probably run past a local real estate attorney, since this could get ugly. (If the new buyer doesn't allow them to use the driveway, and they have to pay to put a new one in, can the neighbor sue the new buyer for the damages, since they bought the house with a driveway?)

N0help4u · Jun 17, 2008, 12:57 PM

Adverse possession (squatters rights) are still used in my state but it is rigid getting it because you have to prove you did ALL requirements and NOBODY contests it.
So while possible, not probable since it is so rigid.
With easement, yeah you need to go to court and rescind the easement or do something the sooner the better.

JudyKayTee · Jun 17, 2008, 01:53 PM

Originally Posted by LisaB4657

I don't think there's been an easement granted. An easement is an interest in property that has to be in writing in order to be valid. The only way they might have an easement is if they have no other way of getting to their property.

There is definitely no adverse possession since they used the driveway with your permission. Their use of it would have to be "hostile" to qualify for adverse possession.

Raising my hand with question for Lisa - there is no such thing as an oral easement or an oral agreement for an easement?

Patiently waiting at my desk to be called upon.

Fr_Chuck · Jun 17, 2008, 02:07 PM

No a true easement has to be in writing, now if you have a landlocked piece of land, and a common road often used, if the owner tries to stop your travel, you can file in court to make it an official easement.

If the other homeowner can merely put their own driveway in, have land that goes to the street, then they have no grounds to demand a easement, if for example, the drive way, or property does not allow for another drive way, and the only way to get to their garage is this drive, they may have a case, But if the other home owner can merely put a drive on their own property, they would have to

LisaB4657 · Jun 17, 2008, 02:08 PM

Originally Posted by JudyKayTee

Raising my hand with question for Lisa - there is no such thing as an oral easement or an oral agreement for an easement?

Patiently waiting at my desk to be called upon.

LOL!

Yep, there's such a thing as an oral easement agreement. It's just not enforceable because it's not in writing. The parties can make an oral agreement but a court can't enforce the agreement if one of the parties breaks the deal.

ScottGem · Jun 17, 2008, 04:56 PM

Of I understand you, Lisa, because nothing is in writing the neighbor's use of the driveway can't be upheld. And if the seller puts it in writing he risks losing the sale. And, without a written easement, the neighbors have no recourse to block a fence unless they have no other way to get to their garage.

LisaB4657 · Jun 17, 2008, 05:08 PM

Originally Posted by ScottGem

Of I understand you, Lisa, because nothing is in writing the neighbor's use of the driveway can't be upheld. And if the seller puts it in writing he risks losing the sale. And, without a written easement, the neighbors have no recourse to block a fence unless they have no other way to get to their garage.

That's pretty much it, Scott. The neighbors should have made a written agreement with the OP years ago if they wanted it that badly. It's possible that they just used it because it was more convenient than their other access and the OP was nice about it.

Of course if it's the only way to access their property then they can get a court to memorialize the easement.