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How to unshare a shared driveway

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I had this same situation. Your upside is the neighbors are NEW owners. Otherwise you would run into "squatters" rights of the use for SOOO many years. Do they have access to their parking area as was designed when built? Or...was it modified in the expectation that they could alway use YOUR property? This is as if mom and dad own a home free and clear yet let their adult children live there rent free...then mom and dad sell the house and the kids won't get out!!! This should have been a slam dunk.

My opinion is that your atty. is letting this thing get very expensive for you.
There is no easment or even a right of way or use of.

Gee...Next you will be going to the supreme court. :rolleyes:

Turns out there are A LOT of cases and decisions that are over turned and appealed in my counties court. Errors etc...

Maybe I will see you there..lol
Wear a sign that says: driveway issue!!!
 


A few questions....

1. You said that the bank's surveyor showed a shared driveway on the drawing he created. How did this surveyor arrive at the conclusion that this was a shared driveway if there were no legal documents in existance to support this notion? What proof did he have that the driveway was shared???

2. If the shared use of the driveway was permissive, and you as the present owner now revoke that permission -- how can that possibly be challenged??? Isn't the whole point of permission the fact that it is not permanent, not binding, and can be revoked????

3. You said that your neighbor's suit stated that the driveway has been shared since 1962. Just out of curiousity, can you tell us who has owned your neighbor's property since that tiime? Was the first owner the man with the mother-in-law tenant? And if so, how long was he the owner, and when did the next owner come along?

4. Is this your only driveway? What happens if you need to park in your own driveway? If your neighbor prevails in her suit (which I can't imagine), does this mean that in order to allow her "unfettered" use of your driveway, you will be prohibited from parking there?
 

woodyga

Member
to answer your questions Mrs Bridges

1. Yes the survey, which by the way is the same surveyor that the plaintiff neighbor used wrote on our survey shared driveway. I called and asked the same questions you asked is there any docs that says shared driveway. He said it just looked like we were sharing it so he just wrote it on the survey. He said that the survey he did for the neighbor would not reflect any shared driveway. Although the neighbor has a copy of our survey with the shared driveway wrote on it. If we make it to court I will subpoena the surveyor. I think that it is pretty incompetent of him to write that on there without any supporting docs.

2. Thats the way it supposed to work. I seems in Missouri there is a thing called easement by implication. My Attorney believes that is what they are going after.

3. There have been 4 previous owners of the neighbors property counting her. One of them was the grand daughter of the owner of our house. One previous owner used our driveway intermittently . And like I said in my previous post the current owner has owned for 2 years.

4. Yes if the judge grants her an easement it would burden us from parking in our own driveway so that we wouldnt block her access.

Thanks for asking, is there any light you can shed on my case. I must admit Im a little worried that the first Judge didnt dismiss the case. We have a hearing on motions scheduled for 2-25-08. My Attorney has not said anything about it to me, I just saw it on casenet.

Question for the panel. Do you think my attorney is handling my case right? Do you think he responded to her plea with the right answer (failure to state a claim with which relief can be granted). I think he should have mentioned she has her own driveway and asked for a quite title, but Im no lawyer.

Thanks again Woody,
 
If you have a hearing scheduled for 2/25, I would definitely call my atty to discuss what will happen, and what his approach will be. Two of the attys that I used were very forthcoming with explaining to me how the Maine courts have viewed cases similar to mine. Here in Maine I had to pay $125 per hour for my atty, but he was well worth it.

It may be that your atty went for a motion to dismiss because it was the simplest, cheapest thing to do. Should he have reasonably known that the judge would not buy it? I dunno. Would it have been appropriate for him to present the judge at that point with the whole nine yards, such as your neighbors having another driveway and garage? Again, I dunno. But he's your atty, and you're paying him, and if you need to talk with him about these issues then he should make himself available for that.

My atty also laid out for me all of my different options, how much each option would likely cost, how long each option would likely take, and the liklihood of my prevailing. If you haven't already asked your atty these kinds of questions, you might want to.

I think most real estate attys must know that people freak out over land issues. So I think a good real estate atty will endeavor to keep his clients calm, focused, and informed.

Good luck, and keep us posted.
 

woodyga

Member
Finally Got A court Date WaHOOOOOO

Hi Gang,
I know long time no hear from me. When they $ay the wheel$ of justice turn $low they mean it. I gue$$ their attorney'$ tactic wa$ to $ee if we would back out due to the expen$e of fighting thi$ litigaion. With all the interrogatorie$ and deposition$ it$ getting expen$ive. But I checked ca$enet this morning and we have a bench trail $cheduled for Augu$t.
Will Keep you posted of any update$. I will be glad to get thi$ $ettled finally.

Woody,
 

TinkerBelleLuvr

Senior Member
Thanks for the update.

Still can't believe that these folks think they can use someone else's property, but not expect to help in the maintenance.
 

seniorjudge

Senior Member
Hi Gang,
I know long time no hear from me. When they $ay the wheel$ of justice turn $low they mean it. I gue$$ their attorney'$ tactic wa$ to $ee if we would back out due to the expen$e of fighting thi$ litigaion. With all the interrogatorie$ and deposition$ it$ getting expen$ive. But I checked ca$enet this morning and we have a bench trail $cheduled for Augu$t.
Will Keep you posted of any update$. I will be glad to get thi$ $ettled finally.

Woody,
What day?

I may want to come?

Who is the judge?
 

woodyga

Member
You may be the judge!!!!

Hey Judge,
Looking at you screen name you may be my judge. If so does this mean I have to get another judge??


August 6th
9am
Judge Syler
 
Last edited:

woodyga

Member
Update #2

Hi Gang,

Well it’s been awhile. I have learned a lot from this expensive experience. I thank all of you that have replied for your thoughts and support. This may be a little long.

I feel a lot more confident now about prevailing in our case.
I was down at the county mapping and appraisal office the other day looking for the building permit of when the plaintiffs’ property added the (covered patio) that she calls a car port. Well the lady that works for the appraisal office shows it coded as a P.C. which stands for Patio Covered. Unfortunately it doesn’t say when it was added. So I get a copy and give it to my attorney. He said we need to get it certified. Well as a matter of policy that office doesn’t certify any of their records. Now what??? Subpoena the clerk to testify that that record came from her office?? My attorney is working on that issue.
What was really interesting was the document shows the date that the houses (improvements) were built. Plaintiffs 1940 our’s 1962. It clearly shows that our house and hopefully driveway were built after the separation of ownership of the property (remember 1 guy owned both at one time) Since she has her own driveway and garage that should defeat element 4. So I really need to have this document certified so that plaintiff’s attorney can’t claim its hear say.

In Missouri to prove easement by implication.

Implied easements require that:
(1) There has been a unity of common ownership followed by a separation of title of the subject property into dominant and servient estates.
(2) The common owner must have constructed, altered or artificially arranged the easement so that it constituted an open, obvious, and visible benefit or advantage to the claimant’s property and a burden to the servient portion of the premises.
(3) The easement must have been used long enough before separation of title and under such circumstances so as to show that the alteration or artificial arrangement was intended to be permanent.
(4) The easement must be reasonably necessary for the full beneficial use and enjoyment of the dominant estate.


It looks like all we have to prove is that all use was by permission. The elements for a prescriptive easement is the same as for adverse possession.

From Missouri revised statutes Secton 516-010 under evidence http://www.moga.mo.gov/statutes/c500-599/5160000010.htm

(1956) Open, continuous and uninterrupted user of real estate for statutory period creates presumption that user was adverse but the presumption disappears on appearance of some substantial evidence, however slight, that user was permissive. Bridle Trail Ass'n. v. O'Shanick (A.), 209 S.W.2d 401.


The 5 elements of adverse possession which must be proved are:
1. Actual Possession. As the recently released Appellate decision reiterates, you must “do” something to land such as clear, fence, cultivate, etc. to be in actual possession. Possessing the the land through “color of title” also suffices.
2. Hostile. The adverse possessor cannot be using the land with the permission or consent of the true record owner.
3. Open and Notorious. The possession must be conspicuous, not hidden from the public or true record owner.
4. Exclusive. The adverse possessor must not be sharing the land with others and must exclude “trespassers.”
5. Continuous. Except for certain circumstances, elements 1-4 must occur for a continuous 10 year period.

I hope that this will help others in the future. If you are going to let someone use your property put it in writing and have it recorded at the court house.

I’m lucky that my job provides me with time off in the middle of the week. I ask my attorney what can I do to help and save some money. He will say get this document and that document if you can. It has saved me some serious bucks.


Will keep you posted,
Woody,
 

woodyga

Member
The Records are Admissible

Hi Gang,

Good News, my attorney found out that the documents from mapping and appraisal office are admissible , according to Missouri revised statutes section 109.130. He ain't Cheep but he's good.
Depositions in two weeks , Many more dollars to go.....


Wow Over 4000 views !!!!!!

Thanks again for the advice and support.

Woody,
 

woodyga

Member
Another Update

Hi Gang,

Well I got another update. We meet with our attorney yesterday and he is very,very optimistic about us prevailing in our case. Seems he found lots of documents to positively refute the plaintiff’s claims. One interesting point was that the original property ran from one street all the way to the next street. So the plaintiff’s property had access to their back yard from the next street untill when one of previous owners sold off that part of the lot. Long after the separation of the two property’s. That blows their easement by implication all out of the water. My attorney also said it would be fine with him if we let that piece of info slip out during our depositions. (I wouldn’t want to play poker with this man) He said they may try to claim a prescriptive easement, but in the plaintiff’s plea they all but come right out and say all previous use was by permission. I’m sorry I can’t say more because the plaintiff or her attorney may read this forum and I don’t want to give away our strategy. Well depositions are Monday Morning,more update’s to come.

Again thanks for the support,

Woody,
 

woodyga

Member
Depositions update

Hi Gang.

Well the depositions went allot better than expected. We were surprised they had brought in the daughter of the owner of the two properties when they were owned by a common owner. My attorney was able to get her to say that all use was by permission and it was a gentlemans agreement. He was also able to get the plaintiff to say the same thing. My attorney was very pleased with the outcome. Any claim that requires a hostile or adverse element is out the window for the plaintiff now.

Hearing in August, will keep you posted.

Woody,
 

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