Shared Driveway Easement?

Question

Hi all, (sorry I just posted this in the pro area before realizing this is a more appropriate spot)

My neighbor and I are planning on having a driveway poured on what is a shared driveway between our houses in Grand Rapids, Michigan. It's clear the driveway is shared however we don't have surveys (and we'd both rather not spend the money). She is a realtor and sent me a doc. we are going to sing/have notarized. It basically states we give each other, heirs, family etc. etc. use of the driveway now and in the future.

Is there any possible danger in this doc? It seems totally harmless. I guess at worse one of us truly owns the driveway and now the other gets access? Thanks for any feedback.

Sean

Rajeev Kotyan · Answer

@Sean Larson: (I am not an attorney), but having been through this, I would say please do work with an attorney as to what is an appropriate or not appropriate language, whether a plot plan is required or not, what impact it can have on the title of the property. Nice neighbors or not, best of friends or not, there is a legal implication to such items which outlasts all of us.

Cory Mccarthy · Answer

No expert and just my opinion, nothing more, but it seems to me that this would be fine until one of you moves and sells to someone else.  At that point in time, there is nothing that obligates the future homeowner to adhere to the agreement.  That would be my concern and as a result, I would likely consult an attorney to determine if there is a way to bind it to future homeowners as well, but as you stated, that is just adding costs and may not be worth it in the long run.  As you pointed out, worst case scenario is that one of you owns it and the other just has rights, but this could get messy later on.  What if it turns out that she is the one that ends up owning it, sells 5 years from now to someone else that you don't particularly get along with and that new owner determines that he/she doesn't want to give you rights anymore.  Then what?  I am sure she is nice enough, but someone else might not be and I would want to some protection for the future.  As it is already a shared driveway, is there anything on file already that establishes rights/access?  Perhaps on Title or Deeds?

Jeff B. · Answer

I would think it ought to filed against the title of both properties concurrently.

Deanna McCormick · Answer

I had similar situation and hope by now you have secured a attorney to draft the agreement, that should be registered on both of your titles, or deeds.

My situation was shared drive, the property line was 2/3rd my favor,  between both of our buildings, our 6 plex, their 4 plex, both had parking at rear. We could not get up and down the narrow driveway without encroaching driving over each other's property to enter or leave.  We had owned our building for over 45 years, we had always done the winter plowing and patched and patched the asphalt drive because the neighbor was not someone to bother.  The driveway became so rutted and terrible cars were getting stuck in the pot holes. We had 3 bids done to replace it. The 4 plex owner said he wasn't going to pay for any of the repairs. This was a city lot, houses were built in early 1900's and neither title said anything about shared driveway use.

To settle the dispute we asked the city to inspect the driveway, and give both of us a fix order. With that we had our attorney draft a letter to 4 plex owner with copy of bids and notice period we were both under to fix. The neighbor finally within a week of deadline signed he would pay for 50% of the bill. My dad was smart we had asphalt company bill us both for 50% with certified funds paid in full before any work started. We asked city for extension and all was completed and passed inspection.

When we went to sell the building first buyer backed out 2 weeks before closing because of driveway being shared and no easement right of way agreement, and maintenance agreement. Second buyer wasn't as concerned with the issue but we had to disclose.

So get it in writing, added to your title , done by attorney.

Wes Brand · Answer

I'd either go all the way "we're not getting officials involved" or "let's do it right". If I'm trying to save a buck I'd say we'll just split the driveway cost and let the title sort itself out later. Clearly you're both currently using the space as a driveway now without issue, and the question of "who owns it" is unclear anyway, so adding an actual driveway is unlikely to change it(not a lawyer, don't quote me).

If the price is high enough where I'm not comfortable potentially walking away from the improvement then I'd do it right, with an attorney and a plot survey and the correct legal language to make sure my ownership interest in the driveway is preserved. Unlikely to matter with the current other owner, but an extreme problem if there's a new owner.

For example, let's say the driveway is owned by house2 and you want to sell house1. Further, let's assume that the "ownership interest" was properly recorded (so house2 owns it, house1 had an easement), but the easement was not. Some technical reason that no one could have foreseen unless they were versed in law. Of course, this doesn't present a problem to you, because you and the owner get along...but now house1 wants to sell and house2 doesn't want to play ball. When house1 lists you need to say "no driveway" or "need to file an easement". All of the sudden, in order to skip on paying an attorney up front when everyone is amicable, you've created a major problem for the value of your house. Plus you've paid for the driveway.

Dave Dagostino · Answer

@Sean Larson

Agree 100% with @Guy Gimenez and @Matthew Kreitzer you need a survey and proper documents done by an attorney. Not doing so opens you up to liability, and could possibly cloud title to both of your properties which could be a major issue and cost one or both of way more money down the road when one or both of you sell.

Guy Gimenez · Answer

@Sean Larson

Don't step over a dollar to save a dime.  Trust me, having a properly and well thought out attorney drafted document will save you more than a few money...it will give you peace of mind and eliminate potential issues down the line.  Pay the cost for a survey and incorporate it into the agreement between you and the neighbor.

The worst thing you can do in this situation is try to do it on the cheap.

Matthew Kreitzer · Answer

Associated with the benefit of an easement are duties and costs. In many states, there are active duties of the owners of the easement to maintain and keep in working condition. Failure to do so could result in legal liability for any injuries or damages sustained by common usage of that easement. For instance, if your neighbor decided to start driving four wheelers up and down the road, and the pavement erroded over time, you could be on the hook should the four wheeler hit a bad batch of pavement and run off the road into a tree.

There are also recordation requirements in many states. Failure to adequately follow recordation requirements could invalidate the instrument you used to create the easement.

Additionally, you may become liable for tax deficiencies for the improved land.

There are a number of liabilities from both injury and tax perspectives that you should become aware of, and contract with a local attorney to adequately protect your interests.

Disclaimer: Not legal advice. Subject to change based on your local rules.

Sean Larson · Answer

@Matthew Kreutzer what types of extreme danger?

Justin Fox · Answer

Unless there is a survey done and you have that section of property in both yours and the neighbor's names, I wouldn't do it.  I learned that the hard way with in-laws.  Get an attorney involved.

Shared Driveway Easement?

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