How Does a Court Determine if Use of Another's Land is Hostile or Permissive

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

I'm trying to learn more about how a court would determine whether a use qualifies as Hostile/Under Claim of Right versus Neigborly Accomodation/Permisive Use. Our situation involves a shared driveway that was put in years ago by siblings that lived side by side and shared a lot line. Until recently the plots have always been owned by close relatives who were by all accounts quite tight and friendly. My understanding is that typically if a shared driveway was used for decades the assumption in NY is that the use is hostile. BUT there is case law that says essentially the presumption switches back to neigborly when the parties are related/part of select bunch of friends/etc. Further I've read that if the local custom is one of no fences, everyone walking/riding bikes/driving cars over each other's property that such a case also lends itself to a presumption of permission.

I believe permission is assumed to carry forward until a neighbor demonstrates a "claim of right." What I'm trying to figure out is what exactly would that look like? I'm not a lawyer so the concepts are not ssecond nature to me. If anyone has any good cases to look at or other know how that helps distinguish how NY courts decide neigborly/permissive vs claim or right/hostile I'd like to learn more. When parties that connected the driveways are no longer alive it seems that courts would have to look at layout, circumstances of neighborly relations, etc. It seems some states like North Carolina lean toward permission as the default and others lean toward assumed hostility. NY seems to be skewing permissive from what I can gather. Again, anyone who knows this well please point me in right direction. Thank you...

You've given the history of the property but not the current Details of why this is an issue now.

Are either of the properties landlocked in that they would not have road access if they stopped sharing the driveway?

Are you trying to stop someone from using your property, is someone trying to stop you from using their property?

What is the outcome you are seeking besides knowledge?

Establishing Permissive use could be as simple as having the last relative owner testify "Yes, I let my cousin use my property with my permission". So more details on the situation and your goal would help you get better answers your real questions.

I am trying to find out if I can stop someone from using the sharde driveway. The neighboring property is not landlocked so no Easement by Neccesity. They would have to install a driveway to a different road, but a public road all the same. Also our title chain was severed before cars were invented so no implied easement potential either. Basically it was loosey goosey for close to 100+ years as everyone was related. We are new owners and not related. Trying to figure out my rights since there is no express easement on any deeds for any of the properties using the share driveway.

I've done a lot of research and talked to lawyer but it is tricky to get a feel for NY court rulings on how they delineate permissive/neigborly versus hostile/claim of right... For now I'm trying to handicap my position on this matter. Thank you!

A court will look at the facts and history, as well as any testimony that is presented, to try to determine the intentions of the parties.

Where permissive use can be inferred from the beginning, as will typically be the case with a shared driveway, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right.

What examples are there of "assertion of a hostile right?" I've read that if the dominant estate tries to maintain/improve/change the driveway that could be considered hostile. Are there other things? I feel comfortable with most of the tests that go into PE decisions, but the hostile/claim of right concept is kind of tricky...

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Quoting Winger

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Also our title chain was severed before cars were invented so no implied easement potential either. !

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There were horses and wagons before there were cars. There could very well be an easement by implication if the driveway was there before the severance of title.

Maybe on the horse/buggy but the NY courts rely on the "necessity" part of the Implied tests and in our case the use was a convenience not necessity as they have plenty of public road access/frontage.

Another thing to consider is how much time/$$$/effort you are willing to expend on this endeavor.

More than likely, you'll end up in court which will entail extensive billable hours adding up to thousands in legal fees. Could also take months to years to get to the final court determination.

you could try for a free consultation with a lawyer and get their take on how much time and $$$ this is going to cost to settle the issue, then decide if you wish to pursue the issue futher.

Anyone else have any examples of what would be considered a hostile "claim of right" use when it comes to shared driveways? Thanks!

Start here.