Legally Speaking: Would an easement work?

By Linda Toga, Esq.

THE FACTS: Ever since I purchased my property, my neighbor had allowed me to drive over his property to get to my garage since the driveway that is on my property is very narrow and difficult to navigate. I am concerned that when my neighbor dies or sells his property, I will no longer be able to use the driveway that passes over his property. He told me he is willing to sell me the strip of his property that I am currently using.

THE QUESTION: Is this the best way to proceed?

THE ANSWER: Unless your neighbor owns a very large parcel of land that is subject to subdivision, I would be surprised if he would be allowed to simply sell you a piece of his property. Even if his property could be legally subdivided, it is unlikely that he could sell you a parcel that is smaller than the standard building lots in your area.

Rather than seeking a subdivision, I suggest that your neighbor grant you an easement over his property that runs with the land. In other words, he could grant you the right to use a specific part of his property for a specific purpose and indicate that the obligations and benefits created by the easement shall be enjoyed by subsequent owners of both your property and his own.

If your neighbor is amenable to creating an easement, the first thing that would have to be done is to have a surveyor map out the area that you will be allowed to use and prepare the legal description of that area. He should then retain an attorney to prepare an easement agreement that sets forth the details of your continued use of the area and the rights and obligations of whoever may own each of the subject properties now and in the future.

The agreement must contain sufficient information to identify the properties involved and the area comprising the easement. The agreement must then be recorded against both your property and your neighbor’s property so that future owners of both properties are on notice of the existence of the easement and their rights and obligations.

Once properly recorded, you will have the right to use the designated area of your neighbor’s property as a driveway for as long as you own your property and future owners will enjoy the same benefits you now enjoy.

Linda M. Toga, Esq provides legal services in the areas of real estate, estate planning and administration, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected]. She will respond to messages and emails as quickly as possible.