Q: We recently
purchased a home on a cul-de-sac. Our property is located at the
circular end of the street, where lots are triangle-shaped and
driveways are shared. The property has been neglected for many years,
and one project we’d like to tackle right away is the driveway. We’d
like to hire a contractor to widen and repair the existing drive, and
we’re willing to pay the entire cost of that work. But our neighbor,
who is averse to change of any kind, says she likes the driveway as it
is (decaying) and doesn’t want any part of this project. She
especially doesn’t want us to touch her part of the driveway. What are
our rights as far as repairing our side only? Under what
circumstances, if at all, can our neighbor sue us for undertaking this
work? We’ll make sure the workmen remain, as much as possible, on our
side of the property line, but what happens if the movement of
equipment temporarily (we’re talking about a few minutes not hours or
days) blocks her access to her side of the drive?
A: Your rights
will depend, at least in part, on the nature of the easement
establishing the shared access to the driveway, and the language
describing that easement, which should be recorded, along with the
deed to your property, in the Registry of Deeds for the county in
which your home is located. The real estate attorneys I consulted
think you probably have a cross easement, in which case, your neighbor
probably can’t do anything at all to prevent you from doing the work
you’re planning. In fact, this cross-easement, grating you joint
access to the drive, also imposes a mutual obligation to maintain it
in good repair and safe condition.
As long as the workmen remain on
property covered by the easement, your neighbor can’t accuse you of
trespassing. If you block her access temporarily or venture onto
property that isn’t covered by the easement, you will be guilty at
least technically of trespassing, but my experts say it is unlikely
that a court would take such a claim very seriously should your
neighbor try to pursue it. I guess the best advice is, have your
workmen stay on your property as much as possible, try not to block
your neighbor’s access at all if you can avoid it, and have witnesses
document any inconveniences that do occur. If necessary, you want to
be able to show that it took the backhoe 30 seconds, not two weeks, to
get out of your neighbor’s way.
