Neighbors land survey said we both own 3' of a third neighbor's driveway...
@slopegirl – did you check the title report from when you bought the property? Since it sounds like this is not a new issue (only new to you) my guess is that there is an existing easement or other appurtenance running with the property, in which case I don’t see that there is much of any value that can be unlocked. I’m sure there is a lawyer willing to look into this for you, but based on the information presented so far, you’d just end up spending a couple thousand dollars to find out that everything is properly documented and there’s nothing you can do to monetize the space.
EJR
in General Discussion 7 years and 2 months ago
15
Please log in, in order to post replies!
15 replies
slopegirl | 7 years and 2 months ago
Hi our next door neighbor just sold an apartment and those new owners had a land survey done as part of their purchase. Our neighbor told us their survey shows that the driveway which runs behind both of our backyards is built 3′ over property line and so we would theoretically and perhaps have claim to 3′ each from this rear neighbor’s driveway. (We are just a few houses down from the corner so driveway is behind both of our yards coming from the adjacent block.)
We have only been in the building nine years and never had a whisper of this when we purchased so it is entirely possible it’s not even true. I have two instincts and one is to ignore it entirely and the other one says, 3′ of space is worth checking into…. I guess our step one is to talk to new neighbors and see the documents and who did survey, etc… if it is true, I’m wondering what is our best next step. thanks for any and all advice
greenworks | 7 years and 2 months ago
Whoa! If true once you check with neighbors I’d do quick and hopefully free consult with a RE attorney to see if it would be worth pursuing (god knows with adverse possession or something you may no longer have right to those 3′ but I got a C in Property Law so what do I know).
If promising, I’d then get my own survey — surveyors can make mistakes — the rear boundary of our property is about 1.5′ longer than we thought, and it may be because the iron stakes that are now visible and clearly mark the rear boundary were not visible/hard to access at the time the surveyor did his survey.
slopegirl | 7 years and 2 months ago
Thanks I never took property law or any other law but the phrase “possession is 9/10ths of the law” must come from somewhere so not making any plans on how to enjoy the new space just yet…
jackdaniel
in General Discussion 7 years and 2 months ago
take a look at this for starters. If the driveway has been there for a long time (longer than the 10 years the NY statute requires) it may not be worth it for you to pursue a claim. https://www.nolo.com/legal-encyclopedia/who-can-claim-property-based-adverse-possession-new-york.html It could be worth finding out how long the driveway has been there and doing a little selfhelp researcch in NY adverse possession law or chatting with a lawyer friend. We found out that our neighbor building extends on our side of the lotline – but its been there for maybe 100 years? So some of these things are interesting but academic.
murph | 7 years and 2 months ago
Get your own survey but first visit Hall of Records and examine anything on file for all properties. Ask all owners if they know of any deeds, wills, MOU’s or codicils that mention this issue. Look for perpetual permission to free access to traverse the driveway, or encumbrances on its use by any and all. Banks would have picked this up for mortgages that had any of these properties as collateral. Access to the driveway would be critical to property value. Liability insurance issues as well.
Also some owner just might want to extend their FAR for construction purposes based on added lot area.
joearchitect | 7 years and 2 months ago
In most cases when the driveway is shared there is a deed restriction that would prevent you from hindering the neighbor’s use of it, as half of a driveway is useless. The neighbor would have the same restriction, granting you use of their half. If the driveway is no longer needed, you could possibly come to an agreement with the neighbor and remove the restriction on both properties, but I think that would also have to be done with every other property affected. The deeds are usually available on the dept of Finance website, but they may not have all documents so if you don’t see the deed restriction it doesn’t necessarily there is none. Zoning setbacks would likely prevent you from building on that portion but I guess you could extend your garden.
greenworks | 7 years and 2 months ago
Hi slopegirl — If I’m reading your post correctly, your situation sounds a little different than the typical shared driveway situation to which joearchitect refers. As opposed to the traditional “shared driveway” he mentions (and what we have), where us and the property next door both own part of the space between our homes for our use as our driveway, it sounds like the neighbor to your rear may have just slapped down 3′ of his driveway on the back of your property and it is of zero use to you or the other neighbors. Is this correct?
Now, at some point in the past, the owners of your property may have given this rear property owner an easement (right of way) or other legal right to this guy for the 3′ of driveway encroaching on your property. This is where murph’s suggestion to check Hall of Records etc comes in.
I’d also on a lark just check my own closing docs to see if there was anything regarding that in there.
Regardless, before spending any mone y on my own survey, I’d want to eyeball the survey the new neighbors got or at least talk directly to those neighbors first if possible. Right now it’s just a game of telephone.
daveinbedstuy | 7 years and 2 months ago
Closing docs should have indicated an encroachment which your lawyer should have caught and pointed out.
slopegirl | 7 years and 2 months ago
Boo, yes, there is a very tall fence (maybe 8′?) at the back of our two yards and the driveway is not accessible to either of us. Its on the adjacent block and runs as ten foot wide corridor behind both of our backyards. And yes I think if 3′ were taken from the driveway it would not function very well as a driveway if at all…. Maybe a very very narrow one? The driveway in question is in active use for I think just one car at a time and a storage shed which looks like a small red barn and my kids believe chickens live in it although they don’t. I’m going to dig up our closing docs and see if there is any mention there of encroachment. Our next door neighbor has been in her house for decades, so she may have an approximate memory of how long it’s been used as driveway by the lot behind us both. My sense is a very long time but I’m guessing. I was also told by an architect several years back that our building is already over its legal FAR, so I’m not sure it would be useful for expanding but that’s a good note to follow up on, maybe we aren’t “over” after all if this turns out to be true.
EJR | 7 years and 2 months ago
when you look at your closing docs, it’s the title report specifically that should identify whether there is an recorded easement or other right of way with respect to this encroachment. Regarding FAR, my guess is that your current FAR is already calculated based on the correct lot lines (i.e., inclusive of the extra 3 feet), so I would be surprised if this altered the FAR.
slopegirl | 7 years and 2 months ago
Thanks EJR this is my weekend homework, now I have a little bit better idea of what to look for.
EJR | 7 years and 2 months ago
…so @slopegirl, what’s the verdict?
lenorascott712 | 7 years and 2 months ago
As a *land surveyor*, first I have to ask, did you get a survey when you bought your house? If so, what does it show? If not, _tsk, tsk_. 🙂
I usually suggest that you give the neighbor an easement. The easement should state that it can’t be expanded and if it is ever moved it has to be eliminated. 3′ of a driveway isn’t worth too much in terms of value, in my opinion. You’ve not needed it in 9 years, why start now?
lenorascott712 | 7 years and 2 months ago
As a *land surveyor*, first I have to ask, did you get a survey when you bought your house? If so, what does it show? If not, _tsk, tsk_. 🙂
I usually suggest that you give the neighbor an easement. The easement should state that it can’t be expanded and if it is ever moved it has to be eliminated. 3′ of a driveway isn’t worth too much in terms of value, in my opinion. You’ve not needed it in 9 years, why start now?
slopegirl | 7 years and 2 months ago
thanks everyone we did get a survey when we bought our building and it shows (approximately) the same thing, but we never looked at it until now. So I guess now the Q is if there is anything we can do about it… anyone know a lawyer who deals in this area of law? thanks!