A driveway right of way might have to be shared

MAILBAG

June 26, 2005

Q. We have lived in our home for 20 years and have used a right-of-way driveway for that long, and so did the people before us, and before them. The home is almost 200 years old. This driveway only went to our house. We live in the manor house; our neighbor lives in the barn, which was renovated. The property in front of us belongs to the barn, and our neighbor sold the land for a spec house. We were told the driveway would be in front of that house and we saw the plans. Now we have to share our driveway. They changed the plans without our knowledge. They have taken down trees that held our driveway lights. We moved the lights to the other side of the driveway. Do we have any rights? We have taken care of the driveway for 20 years, black-topped, snow removal, etc.

A. You want to know if you have the exclusive use of the right-of-way drive to your home; or whether the owner of an adjacent property also has the right to use the drive.

The extent of your rights depends on the express language of the legal instrument that created the easement. If an express easement exists, it should be noted in your deed or title insurance policy. Easements for ingress and egress (access easements) often provide that they exist for the use in common with other properties that abut the easement area. On the other hand, when an easement is created solely for the benefit of one property, the granting language in the legal document likely would provide that it is exclusive to the benefited land.

Easements such as your driveway easement may exist even though they are not specifically granted by a legal instrument. For instance, an easement consisting of a right of way may be implied if it is necessary to allow a landlocked parcel to have access to a public road. If your driveway easement exists by implication, rather than by express language, your right to exclusive use is very doubtful.

Based on a thorough review of your deed and other title instruments, an attorney can advise you as to whether or not you must share the driveway with other neighboring properties.

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