Homeowner on firm ground if driveway encroaches on him


March 31, 2002

Dear Mr. Azrael,

My home in a new development was purchased in June 1999. I found out that the driveway on my property encroached on the neighboring lot. I wrote you about this problem, and your reply in the Mailbag advised me to obtain an easement from the owner of the lot. I followed your advice.

After the easement was obtained, I had my lot resurveyed. However, some of the boundary markers bordering the adjacent lot have been removed by the developer. The developer will soon construct a new home on that lot. It appears that the driveway for that lot will encroach on my property. What legal right do I have to avoid another encroachment?

Obie L. King Jr.


Dear Mr. King:

The developer has no legal right to encroach on your property and must make sure the driveway for that particular lot lies within the lot's boundaries. The only exception would be if the developer reserved a driveway easement in the deed conveying your lot to you or in restrictive covenants filed in the land records before you purchased your lot.

To protect your legal rights, I suggest you send the developer a letter asking him to make sure he stakes the boundary line between your lot and his lot before a driveway is installed. You should include a copy of your recent survey so there will be no question about where the boundary line is.

If a driveway encroachment occurs despite your request, you have a legal right to insist that the paving be removed from your property and any damage restored. On the other hand, you could grant an easement to allow a portion of the driveway for the developer's lot to exist on your property (just as the owner of the lot on the other side has granted you an easement for your driveway).

When landowners are asked to grant easements because of a neighbor's encroachment, they sometimes ask for something of value in exchange. Other times, nothing is paid or given for the easement and the recorded easement instrument recites only a nominal consideration.

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