Use & Maintenance/Easement Agreement for Shared Driveway

Asked over 1 year ago - Smyrna, GA

My home sits at the end of a driveway shared by 2 other homes. All three homes were foreclosures and to our collective knowledge, no surveys exist. Additionally, no use and maintenance agreement currently exists for the drive. While I do not foresee issues with getting the neighbors to agree to the "access/use" portion of the agreement I worry that the neighbor who uses the smallest portion of the drive may push back on shared maintenance. Before chatting with my neighbors further, I would like to better understand the law around whether any one neighbor can "opt out" of such an agreement. Also, I would very much appreciate the best arguments for *why* such an agreement is actually in the best legal interest of all of us.

Attorney answers (2)

  1. Randall M. Lipshutz

    Contributor Level 16

    1

    Lawyer agrees

    Answered . On this one there is no really good coherent answer that can be given. There are different parts of the law that deal with implied easements, reserved easements, express easements, easements by necessity, etc. Without seeing the documents on the court records, including deeds, any neighborhood covenants, plats, etc., a real answer is not possible. The best argument for having an agreement is to avoid questions, such as yours, in the future. With an agreement recorded on the deed records by the owners, everyone would know what was agreed and what rights and obligations go to each owner. I think on this one you are going to have to get with a real estate attorney who can look at all the documents and better advise you.

    This answer is for general purposes only, and it does not create an attorney-client relationship.
  2. Kevin M. Veler

    Contributor Level 15

    Answered . If you need a survey of the property, you may want to start with a plat map. The closing attorneys for prior homeowners may have surveys in their files if needed (but not clear why it is needed, a survey can be ordered now). I will assume that you have verified that there is not a written agreement recorded on the plat or in any recorded documents in the real estate records.

    All too often residential closing attorneys created vary basic "shared driveway agreements" if any at all. Since the driveway already exists, your rights and remedies are very constricted. A written agreement (well written) covers what maintenance is performed, when it is performed, how paid for and what happens if payment is not made or there is not agreement. My suggestion is that you should consult an attorney to draft a good legal form and to be sure it is properly executed and recorded.

    Disclosure: This answer and any information contained in this answer is not intended to be treated as legal... more

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