Shared Driveway - Right of Way Agreement

[Mike McGuire]

My wife and I purchased a duplex a little over 2 years ago. We live in the lower unit and rent the upper. We knew going in that there was a shared driveway with the single family house next to us. There was no mention of any written agreements (easement, right of way, etc..) in the purchase agreement or deed. In fact, it was never even mentioned by the inspector (other than the condition), lender or title company.

I did some research and was able to find a “Right of Way Agreement” signed by the then owners of the properties back in 1955. The agreement just states that both property owners agree to let the other use the driveway for access to their property. Neither of these parties still own the property in question.

The driveway runs between the houses and is almost all (if not all) on our property. We have never had a formal survey done. There is about a foot of space between the driveway and their house and about 3 feet between our house and the driveway. Once you get past the houses the driveway splits and goes to each of the respectful garages.

The driveway is concrete and in horrible shape. We get along fine with the neighbors and last year I approached them about replacing the driveway. I had an estimate done and it is going to run in excess of $7,000 to replace. They said they were interested in splitting the cost and having it replaced but we would have to talk about it more later (it was just a brief conversation).

Here comes the issue. The neighbors have now split and have both moved out and they are letting the house go into foreclosure. Their house is in very poor condition and is in need of major work. I fear what will happen with the property after foreclosure. I think it will either go for a very low price and the people that buy the house will not be willing to foot the bill for replacement or an investor will buy it as a rental property, again not willing to replace the driveway.

I want to take a preemptive strike and no longer share the driveway, I’m just not sure if I am able to do so. The property next door has room for their own driveway on the other side of the house. There is no agreement between either of the current owners. Is the right of way agreement signed back in 1955 still valid? If I have to pay to replace the entire driveway, I do not want to have the neighbors wear and tear on it. Could I get the current owners to sign an agreement to end the shared driveway since they are leaving anyway?

Here is an image of the driveway.

It's a bit confusing but I wanted to give you an idea of what the situation looks like currently.

Any ideas would be greatly appreciated!