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What is a permanent pathway?

I recently moved into my grandmother’s old home. I discovered that her neighbor’s driveway, installed over 50 years ago, is partially on her land. This is the only drive to the house because of the mangrove swamp in front. The neighbor says that this has become a "permanent pathway" and it must remain. Will this reduce the value of my grandmother’s house? I hope to buy it from her.

ANSWER:

Your neighbor’s "permanent pathway" is also called an "easement." Easements are created in a number of ways, including: express grant, express reservation, implied grant, implied reservation, agreement, necessity, prescription, condemnation, dedication, estoppel and sale of land by reference to a plot.

It sounds like your neighbor’s easement was created by either implied grant or reservation or possibly by necessity or prescription.

An implied grant of an easement could be created this way: Assume Lot 2 is your grandmother’s land and Lot 1 is your neighbor’s land. A, the owner of Lots 1 and 2, conveys Lot 1 to B. At the time the deed is executed and delivered, a driveway over a portion of Lot 2 is openly used and reasonably necessary to the beneficial use of Lot 1. An easement for driveway purposes over Lot 2 would ordinarily pass by implication with the deed of Lot 1.

An implied reservation of an easement is created in a reverse situation. A, the owner of Lots 1 and 2, conveys Lot 2 to B and keeps Lot 1. Lot 2 with the driveway is burdened by a use for the benefit of Lot 1. An implied reservation of right to use is created in favor of Lot 1 if all other conditions and requirements are met.

An easement by necessity arises when A conveys Lot 1 to B and B has no means of access to a road, being completely surrounded by Lot 2. In your neighbor’s situation, perhaps the mangrove swamp forces a necessity easement.

The requirements to prove any of the above easements are very strict and specific. Each factual situation must be analyzed to determine what sort of easement rights might exist.

The value of your grandmother’s house will not necessarily be lowered just because the neighbor uses her land for access. There are many factors to be considered in determining values. You should retain the services of a real estate agent or appraiser to help you analyze the value.

This information is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

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