Shared Driveway Blues

[Gratefuldiver]

What is the name of your state (only U.S. law)? IL

I want my Drive Back

I live on a 60 x 120 lot with a drive that was shared but we always knew we owned it. There is really no "real" space to park behind their house, yet they find room to get it back there and park. I had the property surveyed because I wanted to build a garage at the end on the drive. The survey showed I owned the whole drive except for maybe 1'x4' strip on the side at the front. The property was then inspected and approved by the building inspector and then the city historical district committee for construction of the new garage and new driveway approach. We also dumped about 20 tons of rock for the drive.

The neighbors meanwhile where moving out and the house was being sold by his now X girlfriend. I figured this would be the perfect time to reclaim my driveway. Last weekend they had the first showing and a few people came down the drive while I was working in the garage and asked if I could help them. They then told me the agent was advertising it as a shared drive. I went in to have a word with her about it and she claims she found some paper from 1907 at the court house about it’s a shared drive. We then went to the title company and where told they owned 3 feet of the drive and that’s why it’s shared. Yet the surveyor says its mine. Not to mention all the money I put in to the drive.

What are my options here, can I keep them off my driveway and have that 1907 thing reversed. I’m willing to spend the money and I know she wants to sell so that may play in my favor.

 

[154NH773]

can I keep them off my driveway and have that 1907 thing reversed

You need to be clearer on what that "1907 thing" really is, or says.

 

[John_DFW]

Do they have an easement on your property? (from 1907 perhaps)

If not, you could claim adverse possession of their property, but it would be a weak case IMHO due to their use of the driveway. They would have to disclose legal action to a buyer.

 

[Gratefuldiver]

The Paper from 1907 doesn't call it an easment it just says its an agrement between two partys. It says both party own 3.5 feet making a 7' wide drive. I really think over the past 100 years its moved. I also cleared a few feet on my side to widen the drive as well as remove the old approach which was not even with the drive at all. I have lots of pics if I can post but didnt see that I could.

 

[154NH773]

The Paper from 1907 doesn't call it an easment it just says its an agrement between two partys. It says both party own 3.5 feet making a 7' wide drive.

Come on, if you want advice, quote the EXACT wording of the document.

It could say that each of you have access rights across 3.5 feet of THE OTHER PERSON'S PROPERTY. That would be a driveway shared by both of you being 7 feet wide. If that's the case, you cannot block or unilaterally extinguish the grant. Just because it doesn't say "easement" doesn't mean it's not an easement.

 

[Gratefuldiver]

It says

where as the parties to the agrement are desirous of making a driveway between their property 7' in width and running back north 120'. Now there fore in consideration of the sum of $1 paid to each other and the further consideration of the benefits that will be derived be each of the parties to this agreement the said___owners name___ hereby convey for the joint use of the parties to this contract and all subsequent purchasers of the property now owned by ___owners name___ 3.5' off the north side of lot 2 and running back 120'. Said the strip of land being part of the above described property now owned. And for the same consideration the __other owners name___ hereby convey for a joint use of the parties to this contract and all subsequent purchasers of the property now owned by ___owners name__ 3.5' of the south side of lot 3 and running back 120' and being part of said lot 3. It is further understood and agreed that the said driveway shall be continuous one and shall be for the benifit of the parties to this contract and all subsequent purchasers or assigns of the said property and shall be a covenant running with the land. It is further understood and agreed that the said driveway shall always be kept in good condition by the owners or subsequent owners and cost by each shall be one half.


Thats what it says, but here is what I have now. The "3.5'" of there land is now a yard with a wall while I have moved the drive over on my side about 9 feet. So the 7' shared drive is really only about 4' of usable drive now. I guess I cant stop them from using 3.5' of my property (for now) but beyond that 3.5' is mine and they have no rights to from what I can tell. There also is no car that id 4' wide so the way I see it they cant use it unless they stay on the 3.5' shared feet. We are seeing a lawer on Tue

 

[Gratefuldiver]

Please excuse my bad grammar and or spelling in the above post, hadn't had my coffee yet

 

[OHRoadwarrior]

You could always erect a wall at 3.6 feet and force them to tear their wall down.

 

[John_DFW]

You could always erect a wall at 3.6 feet and force them to tear their wall down.

Not without violating the 1907 agreement to keep the driveway maintained. If the OP did so, any subsequent owner could compel them in court to tear down the wall and rebuild the driveway.

Assuming the 1907 document is not invalid or has not been obsoleted by other more recent documents.

I would trust the lawyer who can see this and all other documentation.

 

[OHRoadwarrior]

Not without violating the 1907 agreement to keep the driveway maintained. If the OP did so, any subsequent owner could compel them in court to tear down the wall and rebuild the driveway.

Assuming the 1907 document is not invalid or has not been obsoleted by other more recent documents.

I would trust the lawyer who can see this and all other documentation.

You cannot argue they can put a wall up on his protected area and he cannot respond by doing the same. A wall beyond the 3.5 foot mark does not affect maintaining the 7 foot area in common. If it did, they are already in violation and need to tear their wall down.

 

[John_DFW]

You cannot argue they can put a wall up on his protected area and he cannot respond by doing the same. A wall beyond the 3.5 foot mark does not affect maintaining the 7 foot area in common. If it did, they are already in violation and need to tear their wall down.

I agree the other owners are in violation due to their wall, and it also sounds like they are in violation for not paying for their half of the recent upkeep on the driveway. The problem for the OP is that any agreement made with the sellers must also be ok with the new buyers, and the new buyers will probably expect a shared drive due to the listing and 1907 "easement"

 

[Gratefuldiver]

I'm hoping a letter from the lawyer will scare her in to just signing something to void the agreement. Ill even pay her a $1 like the original owners LOL. Otherwise she will have to get her own lawyer, fix her part of the drive to match mine and pay 1/2 of what it cost me to do all the work. Not to mention pay the mortgage while she trying to sell it which will be slowed by all the lawyer stuff. The house is empty so I'm sure she wants it gone as fast as possible.

 

[OHRoadwarrior]

Tying this up in court can work to your advantage in getting her to compromise. It might cost you some money to get her to agree.

 

[154NH773]

Have the property surveyed; have the driveway as described in the easement marked by the surveyor. Through a lawyer, demand that obstructions placed on the driveway be removed (the wall). Put the driveway in the correct place.

You are under no obligation to provide access on property not within the easement, as long as they are the ones encroaching on the easement.

I assume that if you place fencing along your edge of the easement, that would also restrict your access, but don't feel that you can't block them from going off the actual easement (driveway) path.

Inform the real estate selling the neighbor's house that there is an encroachment to your access that must be disclosed to any buyer, and that you would like to have it removed before any sale is made.

I'm hoping a letter from the lawyer will scare her in to just signing something to void the agreement.

That is highly unlikely if she has any brains. The easement has significant value. Would you give up your portion of the easement cheaply?

 

[Gratefuldiver]

Lawyer called my wife and said we have a pretty good case here and they are not entitle to one inch over the 3.5' off the property line.