Shared driveways, private roads, and alleys, “Oh my!” Although
everyday we probably drive over somebody’s private road or alley, we
give little thought to it until one of two likely unwelcome events
occur; (1) a lender is requiring a “shared driveway agreement” prior to
closing, or (2) the roadway needs repairs and someone is knocking on
your door for money.
In this edition of A Legal Moment, our guest writer, Kip Marshall, will
first identify the most common title interests involved, describe the
basic rights of ownership, and recommend some steps to take to protect
your client’s interests in these shared ways.
Shared driveways, private roads and alleys come in a confusing array of
configurations; the “Y” driveway which straddles the boundary line of
two homes, the “fish bone” or “flag pole” road which passes through and
serves as access to multiple parcels, the cul-de-sac hub or the back
alley which is the service entrance to a line of commercial
establishments.
Almost all of these shared ways are, in legal parlance, “appurtenant
easements,” which is an easement created for the purpose of benefiting
particular land. This type of easement attaches to and passes
with the ownership of the land(s) it benefits. It cannot legally
exist apart from the land it benefits.
One who has an interest in the way (the dominant or beneficial owner)
has the right to use it in the manner and scope agreed to; but, also has
the responsibility to maintain it for his purposes. The one who owns
the land upon which the way is over (the servient owner) may use his
lands including the location of the way in any manner which is not
inconsistent or does not unreasonably impair the intended use of the way
by the dominant owner. When landowners are both dominant and
servient in the same way, each has mutual duties to the other
landowners.
In an ideal world, all such easements are clearly and concisely written
into a deed or a planned development document. Unfortunately,
many of these easements arise by less formal an ill-defined methods; a
pattern of common usage, unplanned family subdivisions, intentional or
unintentional construction or, simply, neighbors’ agreements. The use of
the way or the alley is limited to the land it is “intended” to
serve. Unless by mutual agreement, its use cannot be extended to
other lands or landowners.
The best protection for an owner of land that utilizes a shared
driveway or alley is to ensure that his or her interest in the way (and
the scope of its use) is recorded regardless of how the shared way
originally came to be. This provides the legal title interest in
the way. But how the way is shared and who is responsible for
maintenance, upkeep and safety may not be spelled out in the title
document. The users and landowners of the way need to also enter
into and record a Shared Driveway Agreement, Alley Maintenance Agreement
or Road Maintenance Agreement. If at all possible, these
agreements should identify and allocate maintenance responsibilities and
costs, manner of use and apportionment of liability and
indemnification. It is best if these title documents and driveway
agreements are drafted or reviewed by an attorney familiar with easement
rights.
Realtors should keep a keen eye out for these shared access
issues. They should be addressed with the potential seller as
early as possible. Further, they should be disclosed to potential
buyers and closing attorneys as is necessary to ensure the protection of
the rights of the respective parties. If there is not a written
and recorded maintenance agreement for a shared way, a buyer is unlikely
to get loan approval for a property using it. For this reason, it
is critical to investigate and document shared ways before or during
listing property for sale.
Every year we identify and try to resolve a number of shared driveway
or alley way issues, both recorded and unrecorded. On most
occasions, everyone is willing to work with one another to preserve
their mutual interest in the driveway or alley. However, it is not
unusual for costly litigation to erupt over rights and ownership of the
way. The sooner that the landowners and users of the way can
codify and record their respective rights and interests in the shared
way, the better it is for all involved. It is the proverbial “pay
me now or pay me later” situation.
♢ ♢ ♢
Clifford
“Kip” Marshall, is a trial attorney with and President of Marshall,
Roth & Gregory, PC. His practice encompasses all forms of land
and title litigation, commercial litigation and catastrophic
injury. Please do not hesitate to contact him
(cmarshall@mrglawfirm.com) or me (lgregory@mrglawfirm.com) to receive
more information on this topic or to suggest topics for future editions
of 'A Legal Moment'.
You may not rely on this content as legal advice for any specific
situation, but should instead contact an attorney for specific advice.
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