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  1. #1
    Join Date
    Jun 2010
    Posts
    5

    Default Shared/Contiguous Driveway Issue - Neighbor Won't Sign a Shared Maintenance Agreement

    I have a house in VA that I need to sell as I had to move out of state for my job. I have a willing buyer, but an issue has come up.

    My driveway is contiguous with my neighbour's. Prior to my purchasing of the house, the state widened the road in front of it. They put in a nice, 20 ft wide apron and cut out, a sidewalk, the whole deal. My neighbour bought his house before me, but also after the road was widened.

    My neighbour and I have always both taken full use of the entire 20 ft cut out. We've also both always taken care of the maintenance - adding gravel, smoothing out where the dirt meets the apron, etc.

    My buyer's title company pointed out that only 8 feet of the apron/cut out is on my property, the remaining 12 feet is on the neighbour's. Because of the restricted space, it is impossible to safely leave my property without encroaching on my neighbour's portion of the driveway. Because of this the buyer was refused title insurance unless my neighbour signs a joint use and maintenance agreement.

    My neighbour refuses to sign such a document. He fears that if he does so, some future owner could legally compel him to spend thousands of dollars repairing his portion of the driveway. I completely understand his concerns and do not hold this against him. He also is not willing to sell me a few feet of the driveway; again I understand his position and would not "force" him to sell even if I could.

    So what do I do? I can't continue paying this mortgage. The house has been empty for two years now.

    The neighbour is willing to sign a shared use document but will only agree to giving each other five feet of easement, no maintenance agreement, and wants to be able to revoke the document at will. In short, he won't agree to stipulations that title companies require.

    I have an owner's title insurance policy from when I first purchased the house. The insurance is for $57,200 (the amount I paid). My current mortgage is more than that, but the current loan to equity ratio on the house is well under 50%. My survey (from the 90s when I bought the house) doesn't show anything to do with my neighbour's house/driveway.

    Any thoughts/ideas/possible solutions would be most greatly appreciated!

    Thanks for reading,
    Tres

    Yikes! Sorry for the typo in the subject line.

  2. #2

    Default Re: Shared/Congiuous Driveway Issue in Va

    Well the inexpensive option to explore would probably not make for a happy neighbor, but you MAY be entitled to a prescriptive easement of the driveway, depending on how long you've had continuous use of it and whether your neighbor has previously understood/assumed it to be a "shared driveway" or has only given you permisison to use the portion of the driveway that encroaches onto his property. The other other option of course would be to install your own driveway or widen the portion of the driveway on your property, but that may be costly depending on the length of your driveway.

  3. #3
    Join Date
    Jun 2010
    Posts
    5

    Default Re: Shared/Congiuous Driveway Issue in Va

    I really don't want to upset him that way. He's a very nice man and I do understand his position. One thing that makes me sad is that my buyer intended to pave the enitre amount of the shared area (in addition to my portion of the not-shared area). Mr. Neighbour would have gotten a nice improvement at no cost. It is presently just hardpack and gravel beyond the apron.

    Might I have a claim against my title company for not uncovering this as I am essentially legally land locked? Could they be compelled to pay to widen the cut in/apron? While the state isn't willing to fix their mistake, the county said that I could have a permit to widen the area as needed.

  4. #4

    Default Re: Shared/Congiuous Driveway Issue in Va

    Quote Quoting CallMeTres
    View Post
    I really don't want to upset him that way. He's a very nice man and I do understand his position. One thing that makes me sad is that my buyer intended to pave the enitre amount of the shared area (in addition to my portion of the not-shared area). Mr. Neighbour would have gotten a nice improvement at no cost. It is presently just hardpack and gravel beyond the apron.

    Might I have a claim against my title company for not uncovering this as I am essentially legally land locked? Could they be compelled to pay to widen the cut in/apron? While the state isn't willing to fix their mistake, the county said that I could have a permit to widen the area as needed.
    Well if you're essentially land locked (meaning, other than the strip of driveway, your property doesn't border public right of way), you may actually be entitled to an easement of necesity. Again, this might not make your neighbor happy, but what's more important, keeping your neighbor happy or selling your property?

    As far as the claim against your title insurer, I don't think the example you've given would warrant damages as noone has come forward to make a claim to your property. Your title and property is still free and clear. This would moreso be an issue related to the surveying of your property.

  5. #5
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,376

    Default Re: Shared/Contiguous Driveway Issue - Neighbor Won't Sign a Shared Maintenance Agree

    There are several things I am wondering about here.

    The first is how this is now a problem when it was not a problem in the past.

    I'm also wondering if there is a survey plat somewhere or a deed which would explain this. It appears that you and your neighbor have a similar interest in keeping the shared driveway in use, as it benefits you similarly. I'm puzzled as to why your neighbor does not want to have his own usage of the driveway memorialized.

    I'm also puzzled about how the title company became aware of the driveway. They don't just go out and wander around the property as a rule.

    If I were you I would contact the title insurance company which insured your last transaction on this property and find out if they are willing to update and insure a new owner.

    If your buyer does not need any particular title company, but just one licensed in VA, that approach might work. But realtors, lenders, and title companies have no responsibility to follow that idea, and these things have become much more unpredictable over the past two years.

  6. #6
    Join Date
    Jun 2010
    Posts
    5

    Default Re: Shared/Contiguous Driveway Issue - Neighbor Won't Sign a Shared Maintenance Agree

    Hi LandSurveyor, I was really hoping you would chime in.

    1) I have no idea why this is a problem now and hasn't beein since 1948 when the houses were built. The atty said that title companies are really clamping down because banks are being very diligent in finding title clouds due to the foreclosure crisis.

    2) My 1996 survey shows just my property and does not have any markings indicating how it falls in with the surrounding properties. It does not specifically measure the 8 ft opening, just the almost 70 feet of road frontage.

    3) Mr Neighbour is afraid of a shared maintenance agreement. He says that a) it encombers his property for a future buyer and b) someone can come along and force him to pay thousands of dollars to upgrade the driveway. Additionally he feels that his 12 ft of cut out are more than adequate for his daughter's needs (she lives there) even though she rides out onto "my" part of the driveway every time she comes/goes.

    4) I think that Mr Buyer and his surveyor were up to some hijinx initially. There is abandoned property behind mine to which I was deeded any rights that would have belonged to the previous owner of my property ... no where have rights ever been established. Mr Buyer and his surveyor drew that into the plat as owned by me. I told them they were wrong and so did the title company. I think that this raised the title company's hackles and made them really look at things more closely.

    5) Mr Buyer is afraid of having the same problem I'm having and doesn't want to use my title company.

    Should I contact the title company that has my owner's policy (1996) or the one which insured the lender on my last transaction (2007)?

    Thank you so, so much for reading.

  7. #7
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,376

    Default Re: Shared/Contiguous Driveway Issue - Neighbor Won't Sign a Shared Maintenance Agree

    I can only address the driveway issue as I have no clue as to the status of the other parcel behind your lot.

    As it appears you are in a time crunch, the idea of going to court for a prescriptive easement is probably a non-starter. If you had the time and money, it sounds as if you have a good case.

    Let's go back to the neighbor, who at least appears to be approachable in conversation. The maintenance objection is not a problem. I will get to that in a moment.

    Let's work on the shared use agreement. He, or at least his family, uses the 8' of your property, as someone has since 1948.

    Do you need the entire 12' on his property or would 8' work for you?

    If so a reasonable person might think that the shared use was equitable. His alternative is losing 12' to a prescriptive easement.

    As for the maintenance agreement, the neighbor's objection would seem to be easily overcome by an agreement which would require the agreement of BOTH driveway owners in advance for any shared maintenance expense.

    He will either be more agreeable to this or you will flush out new objections.

    In any case you will better know where you stand.

    Good Luck!

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