Access to Driveway and Back Property

[dchoffo24]

My question involves real estate located in the State of: New York

I purchased a house about 15 years ago that has a single car driveway. The bottom portion of this driveway merges with my neighbors two car driveway. At the time of purchase (which was an estate sale the prior owners were deceased) there was no indication that about 3-4 inches of the bottom portion of the driveway is actually owned by the neighbors. A survey was not required at time of purchase but was done later after the purchase of the house by me. It turns out that the plot of land is actually at an angle so what appears to be a full driveway actually narrows at the road end and widens as you drive up toward the back part of the driveway. In order to access the full driveway toward the back of the property my car actually drives over the property line about the width of the tires and then goes back to my property as I drive forward. It does not cause any damage to anything. The neighbor, who is a snow bird and is only home about 4 months out of the year when she is home constantly puts things like rope, chicken wire fence, shepard hooks etc along the property line which impedes my access to the back end of the driveway. While she has always pointed out the property line so that I "knew where it was" the action of impeding my access did not occur until about 7-8 years after I purchased the house and her actions are speradic at best and is not done on a continuous basis since she is not there the majority of the year. Do I have any type of rights in this case? I've been reading about easements by common law which is not written in the deed but it is confusing. Thanks for any information you can provide. oh and as for the impeding items they always get removed because her daughter (with whom I am friendly with and lives in the upstairs apartment) feels her mother is wrong for doing this and after talking with her always talks her mom into removing the items only to having to deal with the issue again when she returns home the following summer. It is a constant battle which I would like to end.

[Newtons_Apple]

I'm not quite sure what you mean by a common law easement. Perhaps you're referring to an implied easement or an easement by prescription?

If you're pursuing some type of adverse use (prescriptive easement), the onus is on you to prove it in a court of law. The use must be open, notorious, actual, exclusive, continuous and must meet the statutory period of ten years. New York recently enacted legislation to make adverse possession and adverse use very difficult to prove.

Your neighbor may have already defeated your claim by erecting barriers along the line and making you explicitly aware of the location of the line. Her being a snowbird has no bearing on her right to defend her land against trespass. You're the one who would have to prove continuous use, not her.

It can't hurt to have an hour conversation with a local lawyer to see what chance you might have to sue for prescription. Court does get expensive, so my advice would be to try to smooth things over with the neighbor and request to purchase an easement for the encroaching portion of the driveway. Since you're already on good terms with the daughter, you may already have an "in."

The presence (or lack thereof) of unwritten rights almost always takes time and money to resolve. Hopefully you and you neighbor can avoid court and the costs involved.

Hope this helps.

[dchoffo24]

Thank you yes by common law I meant "implied easement" as you define it. I wasn't sure what to call it. I purchased the house in 1998 and for the first 7-8 years was never "barred" from accessing my driveway. This was due to the fact that my neighbors husband was alive at the time and kept her "at bay" if you will. However, she always pointed out the line to prove where it was only due to a patch of grass in the middle that she didn't like me to mow. There was never reference to coming in and out of my driveway. Once her husband passed it got increasingly worse and in about a year or two the "items" started. For example, this year she put 3 shepard hooks one after the other as "decoration" for her property. However, as pulling into my driveway my car scraped the hooks causing a scratch. I talked to the daughter (who unfortunately doesn't get along with her mother) who had an arguement with her and pulled the hooks out. This would be the only action this summer and for the rest of the year I would use my driveway without any further action other than maybe "property line" comments rather than her telling me I can't access my driveway. Talks are impossible. The woman isn't all there. And while I have had civil conversations with her and she seems friendly enough the next day she is awful. Like a Jekyl and Hyde.

I did send her a registered letter explaining the "implied easement" law (which I found a definition online regarding it) but was not entirely sure I was accurate about it and if NY had such a law. I told her any further action or verbal discussions with me regarding this matter would be consdered harrassment and I would then take her to court. I did advise that if she needed to say anything to me it would have to be in writing. This was more in hopes that it would scare her and stop the nonesense. I don't know if the law is true or if it would hold up in court. But I wanted to start documenting her actions and words. She did attempt to talk to me after that letter and I walked away telling her I could not speak to her and submit it in writing. Which she did and I got the other day. In her letter she continues to discuss the property line issue not directly in regard to the driveway but also about trimming trees (hers not mine) and asking me to "abide" by the line. In the letter however, she did state that the shepard hooks were in no way an attempt to prevent access to my "property". I believe she said this to avoid a court case but the hooks did cause a problem accessing my driveway.

Anyway, I appreciate the advise and I guess I will play it by ear. If it continues I will have documentation in writing and hopefully will help in court if it goes that far.