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  1. #1
    Join Date
    Dec 2007
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    3

    Unhappy Driveway Easement

    I bought my Indiana home in 1986. My home is on a frontage road but for some unknown reason my property does not include a driveway. I share a driveway which is deeded to the owner of farmland which is landlocked behind my property. The owner does not live on the farmland and the drive is used only for farm equipment to access her property.
    The owner wants to sell her farmland to a developer for a residential development. The owner before me had a perpetual easement agreement with the owner. The developer plans to use my driveway as a fire emergency access which would limit my use. Can anyone explain to me what my rights are. Do I have to share my drive with emergency vehicles.

    This is a copy of the agreement.

    Driveway Easement

    Whereas, said driveway has been used by the Grantee as a means of ingress and egress between Parcel II and _______Rd,
    Now, therefore, IT IS COVENANTED AND AGREED AS FOLLOWS,
    That the Grantor, for One Dollar ($1.00) and other valuable consideration, does hereby grant and convey to the Grantee a perpetual easement for driveway purposes over and across Parcel I.
    That said easement shall run with the land and shall inure to the benefit of the Grantee, their heirs, administrators, successors and assigns and shall be a burden on the Grantor, their heirs, administrators, successors and assigns.
    That "Driveway Purposes" as used in said easement means purposes common to a residential driveway.
    That the Grantee shall maintain and keep in good repair that portion of driveway used exclusively by the Grantee and the Grantor and Grantee shall share equally in the maintenance of that portion of the driveway used by both the Grantor and the Grantee, however, in the event the Grantor desires to have that portion of the driveway used by the Grantee and Grantor paved or black-topped, then the Grantor shall be responsible for the expense of such paving or black-topping.
    That the Grantee shall not make any improvements to the driveway without written consent of the Grantor.

    I have not spoke with an attorney about this, but I definately would if I found I had any legal rights. I would appreciate any information. Thanks.

  2. #2
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    Default Re: Driveway Easement

    How would their proposed use of the driveway interfere with your use?

  3. #3
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    Dec 2007
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    3

    Default Re: Driveway Easement

    I use the easement to get to a parking area next to my side porch which the parking area is approximately 10' to 12' feet deep. This area is wide enough to park the three vehicles which I own. I am required to back out of the parking area onto the easement. There is no where to turn around to pull out. The portion of the easement that I actually use is approximately 20' wide and 100' deep. There is aproximately 5' between my detatched garage and the property line of the easement. I have safety concerns as to emergency vehicular traffic being this close to my home. According to the Driveway Easement Agreement I summitted, can you explain to me if I have any legal right to prevent this?

  4. #4
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    Default Re: Driveway Easement

    I don't see anything in their which suggests exclusivity of use, and in fact the language suggests the opposite.

  5. #5
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    Dec 2007
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    3

    Default Re: Driveway Easement

    Thank you for your information.

  6. #6
    Join Date
    Dec 2007
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    5

    Default Re: Driveway Easement

    Hey, wait a minute...
    This doesn't sound like an exclusivity of use question but a possible (probable?) overburdening question...
    The easement was granted to a farm parcel, which at the time was farmed.Now the farm parcel's been sold for a subdivision (a textbook case of unforeseen/unintended/improper increased use?) and to me raises several questions:
    Where's the subdivisions primary access to pub rds??
    How does the developer propose to limit use of the driveway to "fire emergency vehicles?? (or is it "fire,emergency vehicles",a lot broader ??)
    While it's extremely doubtful that use by fire and/or emergency vehicles would rise to overburdening, their screaming sires/blaring firetruck horns a few feet from the house might...
    (And why does the developer need such access?? Is the local planning Commission lax/asleep/worse to not require sufficient dedicated roads in his subdivision for necessary fire/emergency access?? Did the developer squeeze in a few more sites this way?? And have the Fire?Emergency Services accepted this as valid "emergency access??)..geez...)
    But the primary danger, to me, is lot owners in the subdivision finding the driveway's a shortcut or more convenient access,and ignoring any "fire/emergency vehicles only" signs, which I would think would have a good chance of rising to overburdening...
    Granted that construction will depend on case law of the state you're in, that overburdening is a morass, and that Courts will not adjudicate possible damages; comments, Mr. K??

  7. #7
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    Default Re: Driveway Easement

    To me it sounds like Parra has a non-exclusive easement, and the proposed use is not by a different easement holder, but by the owner of the servient estate. The issue would thus not be "overburdening", but whether Parra is still able to exercise her rights under the easement given the changed use. Concern about (theoretical) problems backing out? I don't think that's enough.

  8. #8
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    Dec 2007
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    5

    Default Re: Driveway Easement

    Mr. K, with all due respect, we're still not talking about the same point, and I don't think you're giving overburdening by increased use enough weight.
    Parra: What's happening to you is happening to people all over the US...
    The easement grant (to me) appears to be clear that the intent and understanding of the parties at the time of the grant was that only you (incl friends visiting etc) and the farmer (incl employees/lessees etc) would be using the easement area.
    Now the farmer wants to sell; the "farm" piece the easement benefits (the dominant tenement) will become subdivision lots; technically (legally) since the easement runs with the farm parcel, EVERY owner of a PORTION of the "farm parcel" will have the right to use the easement (50 lots=50 families,friends,deliveries, etc, all with the right to use your easement area).
    BUT-that wouldn't be equitable--so "overburdening" an easement, by unintended increased use, is sometimes--repeat--sometimes, prohibited.
    You need to research "overburdening " easements BY INCREASED USE (Google "overburdening easements" and some fascinating cases will come up) and also how such grants are "construed"(interpreted) in your state (some states will consider not just the grant itself, but also the intent of the parties and the circumstances at the time of the grant).
    I'd also look into why the developer wants access over your easement area-it just doesn't smell right. It doesn't seem possible a competent Planning Commission, or whatever there has to OK subdiv layouts, would allow such a Mickey-Mouse setup. Just from a public health, public safety standpoint, all emergency services should be able to access all the proposed living units (houses, condos, apts) over the dedicated public roads/platted private roads in the subdivision proper.
    My apologies to all for being lengthy.

  9. #9
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    Default Re: Driveway Easement

    I think we're of different opinions as to which is the dominant estate and which is the servient estate. Until Parra clarifies that, I don't have much to add, save for noting that you are focused on something that might happen in theory (and you will only win an overburdening claim based on what happens in practice).

  10. #10
    Join Date
    Dec 2007
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    5

    Default Re: Driveway Easement

    Mr. K: Points well taken and perfectly true. Granting that Parra's language is ambiguous, I took Parcel I to be Parra's tract and Parcel II the "farm" parcel. If otherwise, I am completely off base.I do feel it's unusual-to say the least-for a subdiv plat using such access for emergency vehicles, to be accepted; hence my off-topic comments regarding it. In an ideal world, questions of public safety would be raised, the Planning Commission's and the Fire Chiefs hair would collectively stand on end, and more reliable emergency access would be ordered. (Also granted this would not necessarily prevent future overburdening questions).

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