My neighbor has an easement to use my driveway, can I make him pay for part of the resurfacing?
Posted On June 3, 2021
This is a common situation. A private easement is a legal right to use someone else’s land for a specific purpose. It is not uncommon for landlocked property owners with no access to a road to obtain an easement in order to get to the road, which is often over a driveway. Your property may be burdened with an easement from years or decades in the past, and now is the time to repair the property that is covered by the easement.
You were probably aware of the easement when you purchased the property. Your attorney or your title insurance company has likely informed you of this. In many cases, there is also an easement maintenance agreement on file with the county clerk’s office. This settlement would address the question of who has to pay for driveway repairs. If there is no such agreement on file, unfortunately, you have no good way of forcing your neighbors to pay for resurfacing, since you own the land.
Hopefully, if there is no easement maintenance agreement on file, you can work something out with your neighbor. You should reach out to your neighbor in a friendly manner, discuss the problem, and offer to split the cost of repaving the driveway. You might even offer to pay a little more than your fair share to show a good faith effort to compromise and make the neighbor more likely to agree. If your neighbor refuses, you have a few options.
First, you can choose to do nothing. If you do nothing, the driveway will obviously deteriorate. This could damage your vehicles and basically force the neighbor to negotiate with you and offer a reasonable contribution towards the driveway repairs. However, this will take time. Your neighbor may be stubborn and continue to refuse to cooperate for repairs, which means you have to use a shabby driveway as well. You may have an alternate path that you can take, and you might consider using it and allowing them to use the rough driveway alone.
Another option is to hire an attorney. The attorney could write a letter threatening to cut off the neighbor’s access to the driveway unless the neighbor agrees to a contribution. However, that is usually just a threat. They cannot be made to pay for the driveway, although a letter from a lawyer might help scare them enough to pay for a portion of the driveway.
Finally, if friendly negotiations, inaction, and the letter do nothing, you can choose to block the neighbor’s access to the driveway. However, it is highly likely that if they went to court, a court could force you to remove the barrier from the driveway if the neighbor’s easement is legal. To go to court, your neighbors will likely need to hire an attorney, and the neighbor might find that it would be better to spend the money to repair the driveway rather than in court action. It is also possible for a court to find that the neighbor has a valid easement, you wrongly denied him access to your property, and therefore you must pay the neighbor’s legal fees.
It can be very frustrating to own an easement property. Easement holders can be completely inconsiderate in their use of property in multiple ways. Unfortunately, once an easement is on the property, it can be very difficult to get rid of. You can have the easement holder release it, which is unlikely if the easement is necessary to gain access to a road. You can also take action in court, which could legally terminate the easement.