Q: I purchased a property with a shared driveway easement with my neighbor. What is an easement and how do I allocate costs of maintaining and repairing the driveway with my neighbor? Do I bear the costs of repaving and repairing the driveway myself?
A: First, an explanation of an easement might be helpful. Private easements, such as a shared driveway, are a legal right to use someone else’s land for a specific purpose. It is a nonpossessory interest in land because it is the right to use, but not possess the land of another. If your property is burdened by a valid driveway easement, you must honor your neighbor’s right to use the driveway.
The properties subject to an easement are referred to as the servient estate and the dominate estate. The dominant estate is the property that has an easement (or right) over the other property, known as the servient estate. Simply put, a servient estate serves the other and a dominant estate dominates the other by the easement.
When you bought your property, hopefully you were advised of your neighbor’s easement. It should be located in a recorded instrument at the Registry of Deeds (likely the deed to your property) or other instrument, such as an easement maintenance agreement. Such an agreement should address your questions about maintenance and repair of the driveway.
In a perfect world, there would be a recorded easement maintenance agreement. Or, without such an agreement, your neighbor would recognize the problem and offer to split the repair costs. If there is no written agreement and they don’t offer to pay their fair share, your first step is to negotiate an arrangement with them. If your neighbor refuses, you have some options.
One option (not your best) is to do nothing, allow the driveway to deteriorate, and essentially force your neighbor to negotiate with you. The downside is this will take time and the driveway will deteriorate, resulting in increased repair costs.
Another option is to have an attorney write to the neighbor seeking an agreement to a contribution and maintenance agreement. If the neighbor agrees, a written agreement should be recorded at the Registry to ensure they, and subsequent owners, have a legal obligation to maintain and repair the driveway.
It is important to understand the rights and responsibilities that come with easements. Hiring a real estate attorney will help you understand your rights and obligations and help protect your real property interests.
Know the Law is a bi-weekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.