Driveway/Property Right of Way

[apexironman]

We own a house/property in Kentucky. The property next door, which was once part of our property and was split off by the previous owners, has no access other than the driveway on our property. There is no easement or right-of way written into the deeds of either property. We had trespassing issues with the owner, and were told by a local attorney that we had to grant him right-of-way because of the "history of use" (He owned his property before we bought ours). There was not a written right-of-way agreement with the owner.

Now, the adjacent property has been foreclosed on, and the property will be auctioned off. We do not want to have the same issues with new owners or renters. Unfortunately, we can not afford to purchase the property ourselves. Can we file an easement or right-of way that specifies where the property can be accessed from our driveway?

[mudpie]

You don't have to do anything. No written easement agreement is just that...no agreement. The attorney is just looking at the long term whereas the new owner would have to go to court and ask for a court ordered easement for access. However, the new owner would have to approach you first and negotiate in good faith before a judge would consider it.

IMO, I would sit back and not say a thing until the house is placed on the market for sale. Then I would send a certified letter to the realtor and owner advising them that no right of way exists, nor is your drive way joint use and to remain clear.

[LandSurveyor]

I think it is always a good idea to go with the local legal advice you have received from an attorney, particularly in Kentucky. If you feel that the circumstances have changed, you can ask the attorney again.

If there is historic use of the only access to an otherwise landlocked parcel, a judge upon presentation of such evidence, would likely create the written easement and end the dispute. The new owner will not be required by any law to negotiate with you, particularly if you send a letter spurning negotiation and denying in advance any claim. I would not do that unless specifically advised to do so by an attorney.

You have a window of opportunity before the final sale to contact the lien holder and make an offer to delineate a reasonable easement area. The lienholder's motivation will be to clear the easement without further expense and make the property that much more valuable at auction. Your motivation will be to reasonably define the easement in a way more favorable to you than a court might order.

[mudpie]

FYI,

In Kentucky, the period of adverse use must be at least seven (7) years if held under patent and fifteen (15) years otherwise. Kentucky Code §413.050.