By Linda M. Toga, Esq.
The Facts: I bought my boyhood home from my parents when they moved into a 55 and over community. The house was built by my parents in the 1980’s. Despite the fact that the driveway is in the same location now as it was when the house was first built, my neighbor brought over a new survey that suggests that my driveway crosses over his property. He is demanding that I sign a document that states that I do not claim to own the land over which my driveway passes.
The Question: What should I do?
The Answer: What you should do will depend on a number of factors but, the one thing you should not do without consulting an attorney is to sign the document he presented to you. Who actually owns the disputed strip of land and who has the right to use that land will depend on the circumstances surrounding the construction of the driveway in its current location and how the disputed property has been used since the driveway was constructed.
If the driveway was initially positioned on the disputed strip of land based upon your parents’ belief that the land was actually part of their property, and if your family’s use of the land has been continuous since the driveway was constructed, you may have a valid ownership interest in the disputed strip of land. You can commence an adverse possession action in state court and ask a judge to make a determination as to whether the facts support your claim that the land over which your driveway passes is, in fact, yours. If you the judge rules in your favor in the action, you will be declared the rightful owner of the property.
However, even if you do not prevail in the adverse possession action, a court may decide that the long time use by your family of the disputed land justifies the creation of an easement in your favor. In that case, you would not be deemed the owner of the disputed land but, you would have the right to use the driveway in its current location and your neighbor would not be allowed to interfere with that use. Since the easement would run with both your property and your neighbor’s property, the rights and obligations inherent in an easement would apply to all future owners.
Linda M. Toga, Esq. provides legal services in the areas of litigation, estate planning and real estate from her East Setauket office.