Shared Driveway

[Jeremy Parker]

Hello,

First of all, I am a first time poster but long time reader and would like to thank all the posters for the great advice and suggestions. Anyway, I was hoping someone could help me out or point me in the right direction. OK, here's the scenario. The subject has an adjoining parcel located directly behind it, the driveway actually belongs to the adjoining property owner and it is the only access to the subject's garage. According to the homeowner there is no easment but they share the driveway based on a verbal agreement. In my opinion, this obviously needs to be addressed but where should I note this and why? Is it an adverse site condition? Is it a functional obsolesence? I struggle with this because while now this is a non-issue, the same may not be true if the property transferred.
Thanks again for any advice.

 

[hastalavista]

Hello,

First of all, I am a first time poster but long time reader and would like to thank all the posters for the great advice and suggestions. Anyway, I was hoping someone could help me out or point me in the right direction. OK, here's the scenario. The subject has an adjoining parcel located directly behind it, the driveway actually belongs to the adjoining property owner and it is the only access to the subject's garage. According to the homeowner there is no easment but they share the driveway based on a verbal agreement. In my opinion, this obviously needs to be addressed but where should I note this and why? Is it an adverse site condition? Is it a functional obsolesence? I struggle with this because while now this is a non-issue, the same may not be true if the property transferred.
Thanks again for any advice.

Jeremy-

Welcome to the forum as a poster!

BTW, it sounds like you are an appraiser? If so, this section is for non-appraiser/general public. Your post may get moved.

As to your post, it could be a very big problem. However, I'm having a tough time getting a mental picture of the configuration?

So currently, if I own the front lot, the only way to drive into and out of my garage is to use my rear neighbor's driveway? Is that correct?
Is the rear neighbor on a "flag lot"? In other words, is the rear neighbor's only vehicle access to the front street (which my house faces) via this driveway which runs along the side of my property from the street (front) to his house (rear)?


Was the configuration always like this?

If my neighbor didn't like the way I looked at his wife, and told me not to use his driveway, would I (and, could I) build another driveway next to his to get to my garage?

 

[Jeremy Parker]

Denis,

Yes, the configuration is correct but I am not sure if it was always like that. As for the building a new driveway, I don't think it is possible. The driveway is very close to "your house".

 

[Charles Witt]

Easement by prescription?

 

[Smokey Bear]

Easement by prescription?

Ditto, though the laws are different in each state. How long have they shared the driveway?

 

[hastalavista]

An example of prescriptive easement

Example: One of the most common ways in which several neighbors gain a
prescriptive easement is by using a driveway or road on another's land
for many years without being challenged by the owner. This was the
result in a Washington state case when neighbors treated a driveway as
their own for 40 years, finally expanding it into a road. When the owner
tried to reclaim the area, the court ruled in favor of the neighbors--
they had established a legal right to the road by prescriptive
easement.(9)

Courts sometimes appear more willing to grant a prescriptive easement
than actual ownership (through adverse possession) to a trespasser. The
results are far less drastic for the owner. The easement does not take
away the ownership of the property; it only requires the owner to allow
the particular use of the property by somebody else.

http://www.lectlaw.com/files/lat06.htm

 

[hastalavista]

Here's how I'd handle it (assuming we are talking about a Fannie Mae from and a mortgage finance transaction):

1. Factually describe the configuration with driveway ownership, shared use and access.
2. State that no easement is visible on plat map.
3. State that easement/title issues such as this is outside of your SOW for this assignment.
4. State that per your conversation with the owner, he has permission to use the driveway, and actively does.
5. State that the ownership and maintenance responsibility (I assume) is the rear neighbor's.
6. State that you are appraising the subject in its "as is" condition, and part of that condition is its current unfettered ingress/egress access to the garage.
7. State that your requirement and obligation is to disclose such facts when they are discovered in the course of your research, and that this advisement in the report serves as that notice. (I'd do this in bold).


I think you definitely have the obligation to disclose this.
You also have an obligation to consider its effect on value and marketability. However, title and legal questions such as these are outside of your expertise and SOW (this is one of the very few areas that even Fannie doesn't hold the appraiser responsible for). That is why I would opt to make it clear your appraisal is "as is" in its current condition which includes free access to the garage.

Now, there are three likely things that will happen (IMO):
1. The lender may require a recorded easement agreement before they loan. Hey, this is their right, and thats why you want to make sure you disclose this to them.
2. The lender may choose not to make the loan. That's their right too.
3. The lender may require a written agreement from the neighbor documenting the free use, or, may require some other accommodation.
4. The lender may be extra cheerful that day and make the loan regardless.

But you have carried out your responsibilities:
A. Factually and specifically reported what exists.
B. Detailed how you considered its impact in your analysis (if, BTW, you determine it does adversely affect marketability or value, then you need to address that influence and attempt to analyze its impact).

I'll be interested to see how others advise?

One last thing: My above advice is for a mortgage finance appraisal only. If you are doing another type of appraisal, you may have to address the issue differently.

Good luck!

 

[CANative]

If the driveway "belongs" to the lot at the rear, then it must be a flag lot and the "flagpole" is the driveway. If worse came to worse, I'll bet it wouldn't be too difficult to get the municipality to rule in favor of the front lot having access because it could be reasoned that the intent was to have shared access when the lot was divided.

 

[The Matrix]

Lender may require a recorded reciprocal access agreement.

 

[Jeremy Parker]

Thanks everyone!