Issues with Neighbor and a Perscriptive Easement on a Shared Driveway

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“We purchased a piece of land roughly 4 years ago and built a home on it that we finished and moved in last December 2007. To get into our property we have to cross two other properties. The middle man has no issues because he sold us the property. The man at the top of the road has a Prescriptive Easement with the middle man and all his survivors, successors and assigns shall have the right and privilege of entering upon the aforesaid easement for ingress and egress. It also states that the man at the top that owns the driveway is not responsible for maintaining the driveway and that it shall remain dirt and gravel.

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Last fall when we paved our part of the driveway and the man in the middles driveway the contractor had some extra material and asked us if he could put it on the top of the driveway, of course we liked the idea of getting in and out easier but warned the contractor that the man on the top is very unreasonable and he would have to get his permission. The contractor who is also a neighbor said not to worry about the man at the top that he has known him for 20 years and he would take care of getting permission. Well I don’t think he got permission because the next thing we knew the man at the top came out with a gun and was arrested for assault.

Several months later we received a letter from his attorney who is also his nephew saying we had to remove the asphalt and take it back to dirt and gravel. Since we would like to avoid a law suite we complied and hired another company to remove it. They broke it up into gravel, hauled some of it away but left a good part of it to grade so it would be fill in the holes in the driveway.

Well this is still not good enough and they want us to remove the millings which incidentally were put down a year in a half ago by our contractor to even out the driveway. The man on the top watched them go down and never said a word. I guess my question is can they force us to remove the millings and the ground up asphalt and put stone down. This is costly and will not benefit anyone. The man on the top does not use the driveway at all.

The main reason he is not allowing this is because we have a second lot down here we would like to develop but they do not want us to be able to. With out the driveway paved it may be hard to get the waivers to do this. Which at this point we are putting that on hold.

The man at the top is 87 years old and very set in his ways and is very hard to get along with. We tried to buy the driveway land from him for 10,000. and he refused.

Please give me some feedback on the situation.”

If I understand you correctly, the easement over the problem neighbor’s house very specifically says what type of surface it will be. If that’s the case, then yes, he can demand that the surface be what the easement says it will be, no matter how unreasonable that seems to you.

Your beef, it seems to me, is with the contractor who put the pavement there in the first place without permission.

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Author: House Attorney

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