Thoughts on a right of way and two driveways

In My Humble Opinion
1

Short version: in an unmaintained right-of-way between my house and my neighbor’s, there’s their driveway, a 10’ hill that’s maybe 4’ high, and some trees. What are the implications of my trying to expand my driveway into that right-of-way?

Long version: My 98-year-old house has a cinderblock retaining wall next to the narrow (1 car) driveway. The wall is old and moss-covered; worse, the soil it’s retaining is full of trees whose roots are slowly pushing the wall over. It’s getting dire, and it’s time to replace the retaining wall.

I found out that the land on the other side was given to the city as a right-of-way; someone from the city told me:

My elderly neighbor agreed that it’d be fine if I cut down all the trees (I don’t think I needed her permission, but would strongly prefer to keep things friendly). My brother-in-law is far smarter about such matters than me, and he suggested I could expand my driveway into this right-of-way such that we could park two cars side by side.

My dad, on hearing this, suggested we have lawyers settle this issue. However, I’m a little leery of doing so, first because of the cost and second because I worry that could make things ugly with the neighbor (which may be a totally stupid worry and please tell me so if you think it is).

I contacted a surveyor to determine exactly where the property line is. He told me it’d cost $1,620 to do what I want–he claims there are a ton of other things he’s required to do as well (mapping all corners of the property, tying it to some local geodetic monument, etc. etc.)

This goes into several areas I’m not super comfortable with: hiring lawyers, overseeing construction projects, etc. I’m curious whether others have been in similar situations or have any relevant expertise. If your expertise is just “Listen to your dad already, goddammit,” that’s fine too :).

2

I’m not sure I entirely grok the factual setup.

There’s your property, including your driveway, which you own. This is, I suppose, connected to some kind of road? Owned by? There’s a piece of land owned by the city and overgrown with trees that is adjacent to your driveway. And there’s your neighbor’s property. Does your neighbor use the right of way? Did previous occupants use it somehow before it was overgrown?

That said, the basic question you’re asking (I think) is what happens if you improve a piece of the City’s land and use it for your own purposes. Correct?

3

If I have the facts right, I think the risks here are just that the City would decide that you’ve trespassed on its property and you’d face whatever consequences come with that (probably the cost of putting it back how you found it, if they were so inclined). In most jurisdictions, there is no adverse possession for publicly-owned property, so the land would never become yours.

I don’t see that the neighbor has much of a say in the matter, except to the extent that if the neighbor doesn’t like what you’ve done, then he could tell the City who might decide they agree and tell you to stop trespassing.

I suppose you could ask the City’s permission to use the land as a driveway, in exchange for releasing them from liability for any damage their trees might cause to your property. But I don’t know whether the City is responsible for its trees where you live.

The main fact I might have wrong is whether the City owns the land. I read your quote as saying they didn’t agree to maintain, but I don’t think that’s necessarily the same as not agreeing to the transfer at all. If no one owns it, then you should win it by right of conquest!

(IAAL, but IANYL, nor do I know anything about your jurisdiction or really property law beyond having taken a couple of bar exams.)

4

If I’m understanding the set up correctly, there is a right of way which is* wider* than the neighbor’s driveway?

In general, people use any property not being actively used for the right of way.

You try to leave room for any reasonable need of the right of way, snow removal, delivery trucks etc.

The first and best way to deal with this is to talk to the neighbor. Don’t be demanding or jerkish etc.

I have seen this go to court when the neighbors were feuding about other things.

5

If it was me, I’d take down the ready to fall old wall, scrape off the top soil as needed, possibly throw down a couple of bags of gravel, and just start parking there and see if anyone has any objections.

You can always plead ignorance, and easily undo it, if anyone gets bent about it. If it’s all radio silence and no one gives a fig, then I’d think about paving, but not before!

Good Luck!

6

I’m reading it that ownership remains with LHOD but an easement (presumably for access, or right-of-way) was given to the city but no road was ever built. So now it’s just a wasteland between **LHOD **and the neighbor.

I think he could use/occupy his portion without any problem, widening his driveway or whatever else would be acceptable to the local zoning code for his property, and mindful of any setback requirements. But he needs a survey first, to properly identify the exact location of “his” property. And the surveyor (the one he asked, anyway) wants a bunch of money, presumably to survey the entire property so that the surveyor will be confident in his own survey.

7

This kind of thing turns up around here with some fair frequency. People or the town just start using land and unless there’s a need for a survey nobody notices. In a couple of cases people took back land on corner lots that the town had encroached on over the years, slowly paving further and further into the property to round out the corner on the street. One of them was detected in preparation for one of Obama’s shovel ready projects to construct sidewalks. I know of one case where a landowner was able to take over an old right of way they’d been using for ages via some adverse use statute. One road around here, the only road connecting two towns on the narrow border they owned, turned out to be the property of an old factory. Turns out they had built the road initially and the two towns had been maintaining the road ever since. In one case I have few details about it sounds like a homeowner did just what you propose, taking over city property for a driveway, and the only repurcussion was that the city refused to put the ramp in to the new part of the driveway instead of the regular curb. I really doubt anything bad can happen to you if you just take over the property, except you don’t really own it and the town may just come in and tear up your driveway someday, or perhaps it would be a problem selling your property someday. But things could be different where you live, probably best to get advice from someone local, not necessarily a lawyer, but maybe a real estate agent or someone who won’t charge you but would have some experience with the situation. But around here if my neighbor and I were in agreement (fat chance of that happening) I’d just go for it.

8

I agree. I think you could find a lawyer who would give you verbal advice for free, especially if you promised to use him/her if it becomes an issue.

But I would just make the improvements and use the property. I’d be careful to use it in such a way that you (1) do not block the use of the land as a right of way if the town needs to get a vehicle in there for some reason, and (2) make improvements that can easily be “undone” in the future if somebody raises a stink. (For example, if you pave an area, locate the expansion joints so you can remove the concrete up to a point that is definitely on your property and still have a nice clean edge to the parking area.)

If your improvements make the land look better and seem useful, nobody is likely to complain.

9

Presumably the city took the easement for the purpose of constructing a road. Judging from the statement from someone at the city quoted by LHOD in the OP, the city isn’t likely to do so any time in the near future. There are quite a lot of similarly platted easements around the property I’m writing from just now. Given by the original developer, held by the governmental entity (here it’s the county) and available for becoming streets if such should ever be desirable. In the meantime they are just land that is either ignored, or made use of by adjacent landowners. While not exactly encouraged neither is this discouraged. Otherwise these easements just become “no man’s lands”, overgrown with vegetation and sometimes receptacles for trash, walled or fenced off by surrounding landowners. The government doesn’t budget sufficient funds to keep them clear and clean, so if the landowner extends his fence to include the adjacent easement, the government is happy to let the landowner graze his cows or park his trailer there, just so the government can keep on ignoring its maintenance obligation.

From the “trees growing on it” this sounds like LHOD’s situation too. The easement has been ignored to the point that it has become at least an esthetic problem, and perhaps is or will soon be a physical problem as well. Cutting the trees, while not specifically permitted, deserves a wink and a nod from the city since it actually relieves some of the burden. If the retaining wall is actually LHOD’s property, and if the trees were causing it to fail, I think he has a good case against the city and could force them to come mitigate his damages. So he’s saved them the trouble.

Similarly, I doubt the city would object if he cleared and graded it so he could use it as additional parking. It would just be another means by which the city can avoid performing the maintenance itself. If at some future time the city decides to run a road down that easement, LHOD will lose his parking. The city could require him to remove any structures or improvements he had made (like a shed or a wall or pavement), but there would be an extended notification process involved. And when push came to shove, the city won’t press for LHOD to do the actual removal. They’ll do that themselves. After all, they’ll have dozers and graders right there making the road! And what they really worry about is the contentious codger who has built a fancy fountain, landscaped with lots of exotic trees and shrubs, irrigated with an expensive system, and illuminated by special outdoor lighting fixtures on his part of the easement. He’ll fight to the bitter end to save his creation, and could tie them up in court for years. Eventually the city should win, but the expense! and the delay! So the city will be happy enough if LHOD just doesn’t fight them if they want the easement back. Until then, he can have his additional parking space.

10

I agree except I would never install anything permanent.

There is a utility easement in my backyard. I can’t build a permanent shed there. My neighbors and I have purchased prefab sheds on skids that can be moved to allow the utility access. Some of these sheds are over 40 years old and never been moved. But, we are respecting the easement requirements.

Just put down gravel and park in the right of way. I seriously doubt anyone would object. Don’t park there if they raise a fuss.

Pour concrete and you may spend thousands in lawyer fees.

11

IMHO, it’s always better to simply pay an attorney for 20 or 30 minutes of advice if there are any questions which could come back and bite you in the ass. I don’t know if it required one on this case though.

12

I hadn’t read the city’s response carefully before, but aren’t they basically giving LHOD permission to do what he wishes?

They say they know and have no objection to the neighbor already using it for driveway access. So they have no objection to adjoining property owners driving over - and presumably parking on it. In a way, by widening your driveway, you are doing something similar to “driveway access.”

They say the city did not “accept” the property into its inventory. I really don’t know who would own such land. But it does not seem as tho the city is eager to enforce its rights (at the moment).

It states that the city expects residents and utilities to use it “out of convenience.”

And states that adjoining property owners are “left to do what the need to protect their property” from conditions on the right-of-way - seemingly imposing a maintenance obligation on adjoining property owners. That’s weird - and confuses me as to who “owns” it.

So, not your lawyer and all, but I’d basically do with the property what I wanted, avoiding expensive permanent structures, and being prepared for the city to pull the rug out from under me at any moment. If the retaining wall is on your property, tear it down. And cut whatever trees you feel are causing it to fail. I’d probably grade and expand my driveway with gravel.

We used to have a utility easement behind our property. Many people would essentially “prettify” it - planting grass and perennials, trimming underbrush, etc. If the city ever wanted to exercise ownership, we could always blame previous owners or “those darned kids!” :wink: Remember, you’re just an ignorant property owner. You didn’t know any better. You tried to contact everyone involved (neighbor and city.) And you are just concerned with everyone’s safety and property values.

I probably wouldn’t bother with a survey. You have a good general idea where the property line is, and know you are encroaching on land that is not yours. How will a $1200 survey help you? Also, I’m not your atty, but I’m not sure exactly what a lawyer would do for you. Any money you spend on an atty/survey is money you could spend on the improvements.

I probably would do things somewhat incrementally, so as to minimize potential notice. Leave somewhat of a buffer zone between you and the neighbor, or ensure that they are agreeable with what you suggest. Also, if possible, make improvements less obvious from the street/sidewalk. Don’t do anything overly expensive and irreversible. Don’t get greedy, and always realize the neighbor might sell, and a new owner might object - especially if you overreach.

And if you are ever confronted, you can always plead ignorance and say, “I didn’t know,” or better yet, “I thought this letter said I could use it for my `convenience.'” You tried to get guidance from the city, and their guidance was less than crystal clear. They certainly did not tell you not to trespass.