Does Property Owner Have to Share Driveway With the Adjoining Property?

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“My deed states that the nonexclusive right of way, which is the driveway to my property was bought, paid for and is transferred with the property to future owners. My question: Do I have to share the driveway with the property owner? The property adjoining the driveway was bought by another person who lays claim to the driveway, or right of way, of access. Do I have to maintain the road at my total expense  if other property owners are using it? Can I restrict persons from using the drive or right of way, even if the other land owner has given them permission to do so?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

The answer to all three questions is, it depends on what it says in the document that created the easement.  Your deed is (hopefully) referring back to an easement agreement that was made at some point between the people who owned the properties at that time, or possibly to a declaration made when a single owner divided the property and sold part of it.

In either case, a well-drafted easement agreement will cover questions like who else can use the road (or not) and who is responsible for the costs of maintenance.

If your easement agreement doesn’t specify, then it’s likely that the owner of the land that the driveway is on (the “servient tenement”) retains the right to use the land in any way that doesn’t unreasonably interfere with your right to use it.  For a typical driveway that probably includes the right to allow other people to use the road, though the particular facts of your case may be unusual.  The flip side of this is that if they can give permission for others to use the road, then you can’t stop that use (again, assuming it doesn’t unreasonably interfere with your use).

Also typically, if the agreement is silent then the cost of maintenance is shared in proportion to the amount of use.

However, these are matters of local law, and your local law may differ.  If you can’t come to a neighborly agreement (which would be my first choice), it’s probably worth at least an hour of a local attorney’s time to let you know what your position would be if it came to a dispute.



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Author: House Attorney

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