What Is a Driveway Easement?
A driveway easement agreement serves as a legal document conveying in writing your neighbor’s permission to use another’s driveway for driveway and parking purposes. Related to this read Entranceway Approaches, Driveways, Roadways and Walkways.
An example of what this means would be if you had an easement or right-of-way to use your neighbor’s road, drive, or path as access to your property, and vice versa. A driveway easement agreement is the written expression of such an agreement.
It is very common for a landowner that cannot access his own land due to the physical situation of the land in relation to another property to place an easement on that other property to allow a road to be used.
A more common example is that of a driveway that runs through two properties with a house on one , and perhaps a barn or stable on the other, where the use of the road is necessary in the exercise of an owner’s rights with respect to the barn. In that instance, the owner of each property must be satisfied that they are able to use the road for their needs without conflict. A driveway easement agreement will identify the road in question, determine the permissible uses of the road, and make it clear to any subsequent owners of the adjacent properties that they are bound by the agreement and the parties are entitled to enforce such rights.
A driveway easement agreement will typically specify the requirements for maintenance, issues that may arise out of damage, and reasonably acceptable terms for a future alteration of the situation. It is always better to know these things up front than have them arise at a later date.
Prominence of the Easement Agreement Form
There are many benefits offered by driveway easement agreements for both the grantor and grantee. Grantees receive the right to legally utilize private property with the blessing of the grantor, while grantors maintain critical control over that land by preventing interference, unauthorized individuals and misuse. When it comes to driveway easements, the need for establishing clear records of this arrangement is crucial to all parties involved. Without a proper easement agreement form, a road or driveway within private property could create major legal issues down the line if ownership or future development of land is pursued in the future. The ability to provide visible, tangible proof of the professional and legally established boundaries of a driveway easement serves to protect the best interests of both property owners and tenants alike. Without one in place, unexpected disputes could arise that lead to costly legal battles declarations. For this reason alone, clear recording is the best possible way to secure the full benefits of a properly signed and recorded easement agreement.
Necessary Components to a Driveway Easement Agreement Form
When drafting a driveway easement agreement form, it’s vital that you include all the necessary components that ensure clarity between all involved parties. While each form may vary based on specific jurisdictional requirements, there are some basic elements that must be included in every driveway easement agreement.
Parties Involved
The parties involved will be all of those who own the easement, and those who do have to use the easement. In addition, if any lender is still involved with the property, they must be included in the agreement, because it could have an effect on their mortgage of the property. The parties who have interest in the property must sign off on the agreement, and all the parties who are receiving the easement as well.
Description of the Easement
It’s important to incorporate some descriptive language about the driveway in question, as well as its purpose. It’s also helpful to include a map of the property. This will give all parties a visual representation of the land and all of its features that can be found in relation to the easement.
Maintenance Responsibilities
Clearly stating who is responsible for the upkeep of the driveway is a vital part of the driveway easement agreement, as it may be unclear to all the parties who is to do maintenance and who is responsible for any damages that may occur. The only parties that do not bear responsibility for upkeep are those who have to use the easement, although the entire easement must be maintained by everyone involved, as they all have an interest in maintaining a safe and secure property.
Duration of Use
The duration time frame for use of the easement must be clearly delineated in the driveway easement agreement form. While most easements are granted for something akin to perpetuity, there can be occasions when easements are temporary, used for just a few years. This is particularly true when there is a pending lawsuit over possible condemnation of the property.
How to Prepare a Driveway Easement Agreement
But if you would like to draft a driveway easement, the first thing you will need to do is record a survey of the driveway. You must then draft the easement agreement and execute the same as any other deed entitled to recordation, including all necessary acknowledgments. The easement should make clear who has the right to use the driveway and it should also discuss easements that are appurtenant to the driveway as well as parol and equitable rights, if any.
To have the driveway easement enforceable by or against specific parties, it must be recorded at the county clerk’s office. The foregoing describes the general broad strokes pertaining to the drafting of an easement agreement. It is important to point out that the draft must satisfy the general rules, as stated, but it cannot close all possibilities of construction in the event of a dispute. Nor may it guarantee that every possible claim will be adjudicated. This is often the case with oral easements and agreements. Even though they may not be expressly enforceable by or against certain parties, notwithstanding the common law rule requiring deeds to be in writing, they must nevertheless be enforceable unless the question is otherwise resolved. If you feel that your driveway rights may be at stake, it is strongly advised that you consult a real estate attorney to protect your interests.
Legal Issues and Common Mistakes
When it comes to driveway easement agreement forms, one of the most common misunderstandings is that they are legally binding as soon as they are signed by the involved parties. In reality, for a driveway easement to be legally enforceable, the formalities according to the pertinent state laws must be observed. This typically means that the driveway easement must be notarized and recorded with the appropriate government authority.
Property owners and real estate buyers often overlook the necessity of a driveway easement agreement when properties that have shared driveways are being sold. Without such an agreement , there could be increased risks of legal disputes between neighbors or among different property owners in the future. The driveways of adjacent properties may be so narrow that it is impossible for one owner to have an exclusive driveway. Shared driveways are prevalent in urban areas where the right of way is very expensive. There is a chance that the property may become unmarketable if there are no driveway easement agreements. These can form central parts of conveyancing.
Confusion also arises between driveway easement agreements and easement deeds. The former are created in tandem with the sale of the property to which the driveway in question belongs. An owner of land where the other party has a right of entry may require payment from the other party. Unless there is evidence of payment in the records, the transfer of interest will be deemed to have been taken for free.
If a driveway is covered by an easement deed, the easement holders can use it for any purpose, including maintaining it. However, in some jurisdictions, whether a neighbor has exclusive rights to maintain the mutual driveway must be established initially by required evidence, after which maintenance activities are regulated by the actual actions and behavior of the property owners, like whether any owners filled potholes, repaired cracks, tended to overhanging trees or bushes and such.
Resolve Driveway Easement Disputes
Resolving Disputes Over Driveway Easement Agreement Forms
Unfortunately, even the most carefully drafted driveway easement agreement forms can give rise to disputes. Some of the most common issues that may arise in this context include questions about the extent to which the easement grants the property owner rights to use adjacent property for parking and other purposes, the extent to which the subdivider is responsible for maintenance of the relevant portion of roadway, and the duration of the easement. To address these issues and avoid potential conflict, the agreement should clearly state all parties’ rights and responsibilities and should fully describe their intent, particularly when any such provisions may be ambiguous or open to interpretation.
In some cases, parties may need to seek the assistance of a qualified attorney to help them reach an amicable resolution of their dispute. When engaging in this process, property owners should ensure that they fully understand the nature of the dispute and reach out to an experienced attorney to assist them in determining the fastest and least costly way of proceeding to meet their stated goals.
Create Your Own Driveway Easement Form
Even though it is likely your driveway easement situation has some arrangement that will permit you to, fairly easily, fill in the blanks of a standard driveway easement agreement form and have yourself a decent agreement, there are some extraneous features of the agreement thought would be useful or interesting to include.
What follows is a list of items you might consider customizing for your specific situation:
- Special Right to Repair Clause. Although the standard form is expected to allow parties the right to repair, it does not permit a party to repair if the other party reasonably refuses it. You may want to expressly indicate that, notwithstanding any reasonable objection, a party is permitted to make repairs that are reasonably necessary.
- Indemnification Clause. This is a good clause to add to your driveway easement agreement as it will help to prevent you from being liable should something happen in connection with your neighbor’s use of your driveway.
- Permanent Structure Clause . You may also want to include a sentence that permits you to build a permanent structure, such as a fence or wall bordering your driveway and your neighbor’s driveway.
- Waiver. Consider including a sentence stating the waiver of any single provision does not constitute a waiver of other provisions in the driveway easement agreement.
- Governing Law Clause. Consider adding a provision that the agreement will be subject to the laws of the state in which the land is located.
- Severability Clause. This standard clause provides that if any provision of the agreement is held by a court of competent jurisdiction to be prohibited, unenforceable, or invalid, the remaining provisions will remain in full force and effect.
- Section Headings Clause. Adding section headings will help identify the contents of each section of the driveway easement agreement and may make it easier to read.
- Number and Gender Clause. Adding this will provide that singular words will be plural and masculine words will be feminine, as necessary.