Does an Implied Eastment of Necessity Exist?

Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.

“My home in New Jersey and the home next door share a driveway, it has been this way for over 50 years since the homes were built.  I have lived here 6 and 1/2 years.  There is no easement of record and I must use this driveway in order to get to my garage and to the street, as does my neighbor.  My “new” neighbor is threatening to put up a fence or gate to prevent me from using the driveway.  We both own part of it, but most of the driveway is on his property.  I am trying to sell my home at this point and I believe this is going to be a problem.  Does an Implied Eastment of Necessity exist?”Well, you’re right that this is a problem. Since you know of the dispute with your neighbor, you will need to disclose that to any potential buyer (or risk being sued when the buyer discovers it).

Question: On the other hand, it sounds like your new neighbor is being unreasonable. It’s possible that you have a prescriptive easement allowing you to use the portion of the driveway on his property (if so, he probably has one over the portion on yours). This will depend on the specific facts of the history of your properties, in particular whether any prior owner gave permission for this use, and also on what period of time is required for prescriptive easements in New Jersey.One other thing you might want to consider: How do you know where the property line really is? Unless you have a recent survey, you may be mistaken. It’s very common for fences and other landmarks to be in the wrong place.

To answer your specific question, you probably do not have an easement by necessity, which generally only occurs when a property is “landlocked.” You might have to drive through your house to do it, but in theory you COULD access the road without using the driveway.An implied easement, however, is a horse of a different color. That would depend on the state of the properties at the time they were subdivided. In essence, it’s a judicial determination that the subdividor “obviously forgot” to record an easement. You’ll need to check with an attorney locally to see what the specific requirements for such an easement are in your state.

With all that as background, you should also consider a more practical solution. How urgently do you need to sell? Perhaps you could convince (and by convince I mean pay) your new neighbor to record an easement. You might already have the right to use the driveway, but you should consider the time and money it will take to enforce that right versus how much it would cost to buy off your neighbor and eliminate the problem.

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Real Property in a Nutshell (Nutshell Series.)