Driveway easement in New Jersey

[SMinNJ]

What is the name of your state? NJ

My husband just bought a house in New Jersey. When he went under contract, it was understood that there was an easement to use the driveway alongside the property, which is owned by another party.

Before the purchase of the house, but after the contract was made, the owner of the driveway put a fence at the end of his driveway. The driveway is the only access to his main property, which is a large piece of concrete behind our home. Now that there is a fence there, we only have a three foot width on the side of our house, and we have no access to the car gate on the side of our back yard, where we also have a slab of concrete for off-street parking. There is a lock on the fence blocking the drive.

The owner of the driveway claims that the deed previous to his for the property, shows that in 1963, the driveway was sold by owners of our property with a "right of way to be created". He refuses to provide us with a key to the fence, stating that the right of way was never created and therefore does not exist. We are happy to have the fence there, as it adds security to my husband's property as well, but we would like to be able to access it.

The deed for the property provided to us dates to 1984, and it also shows that the property of our home includes "a point in a 12 feet right of way to be created leading to property in the rear of described premises." The survey which was done for us a month ago calls that driveway a right of way.

For most of the last forty years, the previous tenants have had free access to that driveway, and therefore had the ability to use the car gate and park the car alongside the house in an available gap that does not encroach upon the other driveway. This free access is no longer available.

We are trying to determine our next course of action. Can the title company help with this? Would there actually be a deed of easement created if it were created? Does the fact that these documents say that the easement will be created mean that the owner MUST create the easement?

Thanks for your help...

 

[SMinNJ]

I am bumping this hoping for a response, as well as to provide additional information/questions.

A friend who is a surveyor did some research for us. He determined that, in addition to the properties of my husband and the opposing owner, there is an odd shaped plot of land owned by no one. It is not included either in our deeds or the opposing owner's deed. Oddly enough, our rear fence incroaches about ten feet into this un-owned property. The unowned property may have been used/owned by the previous owners of the opposing owner's property, which happened to be a church, and therefore paid no taxes on the property. Our survey friend thinks that since the property is unowned and there might not be unpaid taxes because of this (the tax map, which I understand is NOT to represent actual property lines, includes that property as part of the church's previous property.), that we might be able to file to take that land.

We looked at google maps for the property, which shows, in a photo over two years old, that the previous owner of OUR property had a fence actually blocking the opposing owner's driveway from the opposing owner's main land, and actually had garage built on our property and the unowned land. Talking to the neighbors, it seems that this fence was up there for years, with no arguments from the opposing owners. It was only when this new owner took the property that the encroaching fence was removed and the right of way became an issue.

So, we want to know the following...

Can we claim the unowned property?
20 years is the time frame for adverse possession in NJ. What do we need to do to prove that our property had been using the driveway as its own for that period of time?
Do you actually get a deed of easement? Is that how it would be formalized?

Thanks for your help...

 

[SMinNJ]

I'm bumping again, still hoping for a reply. We're sending a "giving us a key or else" letter tomorrow... hopefully that will bear fruit...

 

[SMinNJ]

I'm bumping this for a reply...As you all can see, I'm the only person who has ever replied - does this mean no one has the answer, or no one likes me? I'll understand either way, I'd just like to know.

 

[rowz]

So, as this house was recently purchased, what does the lawyer that did the closing for you say about this situation when you asked him?

To my knowledge, all easements must appear on the deed.

 

[SMinNJ]

Thanks for the response. In South Jersey, lawyers don't do closings - you generally just have your realtor with you. Parties involved seemed a little confused what to do about the fact that all deeds involved show that the easement is "to be created". The survey itself shows the driveway listed as a R.O.W. (right of way).

 

[HuAi]

You should ALWAYS have an RE attorney for closing to cover any issues than come up. Granted I live in central NJ, but I haven't heard of anyone closing without an attorney around here ever.

 

[SMinNJ]

You should ALWAYS have an RE attorney for closing to cover any issues than come up. Granted I live in central NJ, but I haven't heard of anyone closing without an attorney around here ever.

I know it sounds weird, but lawyers don't do closings in South Jersey. I know that it is different in Central and North Jersey, but it is the common practice here, and while not barred, of course, it is apparently frowned upon by sellers and can cause difficulties going forward.

Unfortunately, this discussion does not answer my questions...

 

[NJAtty]

SMinNJ

I just came across this thread while researching a similar issue for a client. Can you tell me if and how this matter was eventually resolved?

My sense, based on the details you've given is that you had an easement regardless of whether it was ever expressly created. Please let me know if the issue was resolved or if it is still ongoing.

 

[SMinNJ]

SMinNJ

I just came across this thread while researching a similar issue for a client. Can you tell me if and how this matter was eventually resolved?

My sense, based on the details you've given is that you had an easement regardless of whether it was ever expressly created. Please let me know if the issue was resolved or if it is still ongoing.

Sorry I didn't see this previously... We filed a motion to allow us access. We were pro se, the owner of the driveway had an attorney. The judge and the attorney spent about 20 minutes discussing an apparent discrepancy in New Jersey law regarding "squatter's rights", and how long a property must be used by someone other than the owner before ownership changes hands. That was the sole sum of the conversation. After that hearing, the attorney approached us to offer a settlement - we have use of the driveway while we are the legal owners of this house. After that, use does not transfer to the new owners. Our take of it was that the attorney realized that our property actually had some sort of case for taking the property and in order to avoid that, they settled. We were fine with this - we just wanted access to our car gate.

 

[FarmerJ]

When it does come to be your time to sell I would suggest you do something to change the use of the concrete pad before you list it like say not park there and have a picnic table and grill out there and summer lawn furniture so that way to a buyer who would not be able to access it to park on that it will show a use.