Unfortunately,
the term shared is such an inexact state of being and only through first
deciphering how the driveway is actually owned can the mutual obligations for
maintenance be precisely determined.
To
force your neighbor to share in the upkeep and maintenance of a driveway or, better
yet, to force your neighbor to pay for the entirety of the driveway maintenance
is a complex proposition. To do this, you should first look to the deeds for
all of the properties sharing the driveway. Typically, the deeds will show how the
driveway is owned. There is only a true sharing of the driveway when there is a
separately deeded right for the ownership of the driveway, in addition to both
neighbors’ ownership of their individual properties, and as such, the driveway
is titled in the neighbors as tenants-in-common or joint tenants. In this
situation the driveway can be thought about in the same terms that one would
view a lobby of a condominium with respect to ownership responsibilities and
permissive use.
The
typical shared driveway is not generally owned by both neighbors jointly, as
previously described, but, instead, one neighbor usually owns the driveway
while the other neighbor will hold an easement to use the driveway, or a right
of way over such driveway. Here, the owner of the driveway is considered to
have the servient estate whereas the easement-holder is considered to have the dominant
estate. The dominant estate has rights that exist on top of that of the
property owner who must, in turn, moderate his own rights for the purpose of
serving the dominant’s intended use. In consequence to the owner’s subordinated
rights, and as New York’s highest court has explained, “[o]rdinarily, a
servient owner has no duty to maintain an easement to which its property is
subject”. Instead, the servient landowner only has a passive duty not to
interfere with the rights of the dominant easement-holder. As a result,
maintenance and snow removal would typically fall on the shoulders of the
easement-holder (a/k/a dominant estate), by default, who has a corresponding duty
to keep the easement in sufficiently good repair so as to avoid harm to the servient
landowner’s property.
A
properly drafted deed should obviate the need to understand these default rules
because such a deed should spell out the respective duties and limitations of
the parties’ rights with respect to the driveway. The deed should go so far as
to speak in terms of the specific maintenance obligations of each neighbor by explaining
if the dominant estate-holder’s rights are just to use the easement as a
passageway, or, instead, if the dominant estate-holder can maintain the
easement with such things as plantings, fencing, paving, etc. A properly
drafted deed should allocate the costs and decision-making powers of the
neighbors so that there is no ambiguity as to the neighbors’ ability to
co-exist into the future. More particularly, the deed should unequivocally
state if the servient landowner is completely excluded from use of the driveway
existing for the benefit of the easement-holder, or if both the servient and
the dominant estate can use the driveway in a shared manner. The latter being
the default rule if the deed is silent as to this issue. In such a situation and
absent an express agreement to the contrary, all persons benefited by an easement
must share ratably in costs of its maintenance and repair.
Assuming
that both the servient and dominant estates actually utilize the driveway, the
ownership rights will be looked at as an easement-in-common by a court when
allocating the costs of maintenance. As a consequence either neighbor can take
initiative to maintain the driveway. However, a neighbor can only look to the
other to share ratably in its repair if that neighbor, who is undertaking the
repair, gave the other neighbor both adequate notice of the repair issue sought
to be addressed and a reasonable opportunity to participate in deciding how the
repair is made. Thereafter, the neighbor, who is undertaking the repair, must
ensure that the repairs were performed adequately, properly and at a reasonable
price. Failure by the neighbor, who is undertaking the repair, to satisfy any
of these obligations will prove fatal in any subsequent claim upon the other
neighbor to share in the cost of maintenance of their shared driveway.
If
you don’t have an agreement concerning the maintenance of a shared driveway
with your neighbor, before going to court, you should invite your neighbor to
enter into such a private agreement and thereafter file it with the deed, at
the county clerk’s office, as a covenant and restriction that runs with the
land. This type of agreement will not only avoid your instant conflict with
your neighbor, but it will also prevent future neighbors who are living at your
properties from existing with the same type of ambiguity, as to the rights and
responsibilities for driveway maintenance, that created your conflict in the
first place. As a consequence, it will enhance your property’s value.
