Obtain an easement quickly if your driveway encroaches

Dear Mr. Azrael:

My home was purchased June 1999. During settlement our attorney presented us with a copy of our plat, known as lot 31, which clearly lists the curve in our driveway as encroaching on lot 30.

In September the developer [planned] to construct a home on lot 30. Is the developer responsible for the encroachment to the adjacent lot 30? What legal rights do I have?

The developer installed the driveway and encroached on lot 30, against the advice of the surveyor, before the house was placed on lot 31. Obie L. King Jr. Baltimore

Dear Mr. King:

Before the developer sells lot 30, you should obtain an easement agreement, giving you the right to maintain and use the portion of the driveway that encroaches. The easement instrument should be reviewed by your title attorney and recorded among the land records as soon as possible.

If you do not get a proper easement, a future owner of your lot could insist that you relocate your driveway to eliminate any encroachment.

I don't see any reason why the developer would not cooperate in solving the encroachment problem.

But, if you cannot obtain an easement, you will need to consult a lawyer about your legal rights. You may have rights arising from your contract, or you may be able to sue the developer for negligence in locating part of your driveway on the neighboring property.

You may also have legal rights against your settlement attorney. He or she apparently brought the encroachment to your attention at the closing. But this was not enough. Something should have been done about the encroachment before you settled .

Frankly, I don't know why you went ahead and settled for your new home without getting a legal agreement that cured the problem of part of your driveway being on someone else's land.

You should take prompt effective action now, before lot 30 is sold and it may be too late.