What is a Driveway Easement?
In legal terms, a driveway easement in Kentucky grants an adjoining property owner the right to use a part of a neighboring property owner’s land for a driveway. When one property adjoins another, which neither touches nor has an exit of its own, a driveway easement may be used to allow access to the adjoining property by way of a shared driveway that traverses across the property line. Generally, statutory provisions dictate the minimum distances of the easement area from adjoining structures, footpaths, etc.
A driveway easement allows the burdened landowner the ability to utilize that specific portion of his/her land, without impeding upon the property rights of the servient estate , which entails the right to enjoy one’s own property as desired. Driveway easements are also put into place for the benefit of the landowner upon which the driveway is located, as it lessens the burden of having to build a separate driveway on his/her property and allows equal use of the easement area.
Driveway easements make concession for the property owner with the burdened estate upon which the easement is located, as opposed to the other type of common easement called a common easement or ‘right of way’. Driveway easements grant the right to use a certain parcel of land, as opposed to the right of passage that exists when it comes to the common easement or ‘right of way’. The ‘right of way’ of the common easement goes across properties, while the driveway easement grants the benefit of going across the actual property of another.
Easement Law in Kentucky
The legal framework governing easements in Kentucky is an amalgamation of state statutes, case law, and common law principles that collectively define the boundaries of property rights and usage. The most relevant provisions dealing with easements and servitudes in Kentucky law can be found in Chapter 381 of the Kentucky Revised Statutes (KRS). KRS 381 has provisions outlining general easement law such as the statutory right to establish a new easement (see KRS 381.025), the construction, maintenance and repair obligations of an easement holders and servient land owners (see KRS 381.026), compensation of the property owner for any damages caused by the use of an easement (see KRS 381.027), and the process for obtaining an easement by necessity or condemnation (see KRS 381.061 and 381.062, respectively). Kentucky case law has also further developed the law on private easements by necessity, specifically the circumstances in which an easement by necessity is created and the parameters of its use. See e.g. Bush v. Bowers, 589 S.W.2d 5, 8-9 (Ky. 1979) (establishing that the right to an easement by necessity is acquired when a party gains a landlocked parcel of property as a result of its severance from a previous parcel); Louisville Gas & Electric Co. v. Essinger, 32 S.W.3d 376, 382 (Ky. App. 2000) (finding that the scope of the easement by necessity extends to "any reasonable use necessary to effectuate access between the two landowners" and that each owner of property servient to that access easement can invoke the protection afforded by KRS 381.026 by seeking an injunction prohibiting any use of the easement that unreasonably interferes with their right to use their own property). Despite the current statutory authority defining the rights of easement holders, Kentucky courts still rely on common law rules in determining the scope of the rights and the responsibilities of the parties. For example, the common law prohibits landowners from unreasonably interfering with an easement, however, such a restriction does not include landlocked parcels of property. Smith v. Hazard Improvement Co., 854 S.W.2d 765, 769 (Ky. 1993). In determining the scope of the right to an easement, reference is always made to the intention of the parties. See Louisville Gas & Electric Co. v. Essinger, 32 S.W.3d 376, 382 (Ky. App. 2000). Psychologically, the courts place the easement holder in the position of the master, while the property owner is the servant and this principle governs in wide variety of contexts, even where the easement holder is not the property owner. See id. at 381-82 (recognizing that the easement "run(s) with the land" and that the easement holder has the "benefit and burden of it whether [he] be the owner of the dominant tenement or not").
Types of Easements Applicable to Driveways
The types of easements that can be created regarding driveways and shared roads in Kentucky include express easements, implied easements, and easements by prescription.
Express Easements
An express driveway easement is one created through a written contract. If the parties to the contract do not want to grant an express easement, they must be cautious in drafting Deeds that reference use of a road in order to avoid an implied or prescriptive easement arising. Generally, when people own property that adjoin Fido’s Woodland Roadway, they tend to start using it. This will probably create a prescriptive easement over woodland roadways. Use of a road for a sufficient time is one thing. A planned invasion of Fido’s Woodland Roadway wherein people use half of the road and cut down the trees to gain access to their property may be considered an improper use of the land, with Fido. When this type of analysis is reviewed by the court, the court will probably consider the circumstances and intents of the parties. A court might decide that the people who used the road at a certain time had an intent to obtain the right to use the road for a sufficient time to claim a prescriptive easement.
Implied Easements
An implied easement can arise by implication. If the driveway existed prior to the division or sale of an entire property into two or more separate tracts it is generally considered to be an implied easement. The easement is implied solely from the fact that the defendant used the roadway in order to reach the public highway at the time of the severance and has continued to do so since that date. A good example of this is when two adjacent properties are all owned by one owner. If one tract is sold, an implied easement may arise by implication as to the tract sold.
Prescriptive Easements
When using woodland roads or roadways, it is important to be familiar with the law of prescriptive easements. Use of woodland roads has become a custom for many years, but the use of a roadway for a period of 15 years can give rise to a prescriptive easement. A prescriptive easement is a right of use established by usage or continuation for a certain time frame.
If an implied easement is established, it can be terminated by abandonment, and a court will consider a large number of factors when reviewing whether abandonment has concluded. A prescriptive easement can be extinguished by adverse use that is inconsistent with the easement.
How to Obtain a Driveway Easement in Kentucky
In order to establish a driveway easement in Kentucky, an explicit written easement agreement is not necessarily required, provided that the easement is being claimed by prescription and there exists sufficient evidence of the express reservation of the easement. Easements may also be created by necessity.
The process for establishing a driveway easement in Kentucky that is being claimed by prescription usually involves making use of a portion of another property as if it were one’s own for at least 15 years. Prescriptive easements often arise out of a prior neighbor’s tacit approval of one’s use of a portion of his or her property as a driveway to access one’s own property. Prescriptive easements are often established when one neighbor’s use of the other neighbor’s driveway creates a "way of necessity" due to the location of the properties and/or because the involved properties have been sub-divided with driveways to each property having been constructed in such a way as to lead to the creation of a "way of necessity." Once 15 years have passed and the necessary proof exists to establish the grant of an easement by prescription, the prescriptive easement remains forever unless (1) it is abandoned (which can occur by an express manifestation of intent by the easement holder); (2) the dominant estate (the property which gained the right of access by virtue of the easement) and servient estate (the property which lost the right of access by virtue of the easement) merge (which commonly occurs when the properties under two separate ownership are re-conveyed; title to both properties vests under the same person/company name; and there is no intent to reserve an easement); or (3) the easement is extinguished by prescription (which commonly occurs where reasonable use via the easement is impossible).
If an easement is explicitly granted via easement document, Kentucky easement law provides that the document must be in writing and signed by the grantor, be delivered to the grantee and be accepted by the grantee. The delivery and acceptance may be evidenced by the part[ies] taking possession under the easement…." In Kentucky, easement grants that are delivered to and accepted by the person who holds a conveyance to the land subject to the easement will be operative to grant the easement. Bitsler v. Long (1898) 18 Ky L Rep 324, 80 SW 314. The delivery and acceptance may be demonstrated by a reasonable construction of the grant showing intention of the parties to make a present effective grant. Hart v. Gay (1977) 563 SW2d 618, 620. An easement in a deed is enforceable if it is found that the circumstances of the transaction and the actions of the parties indicate the grant was intended to be immediately binding (and not subject to a condition precedent). Creek v. Harman (1957) 303 Ky 160, 197 SW2d 441, 444.
How to Resolve a Dispute Over a Driveway Easement
Disputes are not uncommon when it comes to driveway easements. The most frequently recurring issues are the following:
- Whether the drive is being used more than what it is intended for;
- Boundary disputes, which can occur if markers are not installed on the easement;
- Maintenance disputes, such as who will bear the cost of repair due to normal wear and tear.
- Fee charged for use of the easement.
- Timing of payment of fees.
Disputes may be resolved through the various forms of alternative dispute resolution, including mediation, arbitration , or litigation. Mediation is an informal process that seeks to address the issues in a manner that is agreeable to both parties. Arbitration is a much more structured and formal process that leads to a binding result. Litigation in its simplest form is taking your issue before a judge, generally in a court setting. However, because the law regarding easements can be complex, litigation of an easement dispute can be a costly and time-consuming process.
Mediation often presents the best solution for driveway easement disputes. It can provide a means to discuss various options for resolving the issue that are not available in court, and it can also point parties towards the real concern, which can aid in resolution.
Easements and Property Value and Liability
The impact of easements on the value of the property is important to property owners in Kentucky. For the owner of the property subject to the easement, having a driveway easement over private property will add value and increase the marketability of the property. Conversely, the holder of the driveway easement may find his or her property to be less desirable due to the expense of maintaining a shared road, both financially and in terms of effort. At the same time, the benefit of saving money on legal fees and the headaches in negotiating the easement document, setting up the maintenance corporation, and having to sue the other party for violations of the easement documents will be very attractive to the party benefiting from the easement. Easements are often granted to allow one property owner or class of property owners to share the responsibilities and obligations of maintaining a private roadway or driveway that is solely on their property. In other situations, the owner of the dominant estate may appreciate having the use of an area for parking or similar purposes (i.e., hunting, fishing, or other outdoor recreation).
Of course, with any benefit comes some risk and liability. The owner of the servient estate who grants the easement over his or her property may be placing his or her property at risk for any injury to the dominant estate that results from the maintenance of the easement. For instance, if a fallen tree blocks a neighbor’s driveway, the neighbor must either remove it or face a potential damage claim from the owner of the drive. If the property value of the dominant estate drops due to "non-making" of the roadway, any decrease in the property value may be charged back to the servient estate during the sale of the property.
New Developments in Kentucky Easement Law
Recent developments in Kentucky Driveway Easement Laws suggest an ongoing evolution in the Courts’ approach to these issues. With the developing case law some of the rules and understandings that have governed driveway easements, are subject to change as the legislature or the courts expand on the their existing interpretations.
One recent case of note is American Training Institute, Inc. v. Hodge where the Kentucky Court of Appeals held that in an action to terminate an easement there must be an actual injury from the continuance of the easement. The factual background is that a company had an easement over the land of its neighbor to use a lot owned by the company as a parking lot. The neighbor claimed in an action to terminate the easement alleged that the continued use of the easement damaged his ability to lease the property. His allegations were in the case against his neighbor . The Court however held that even assuming the neighbor was prohibited from using the lot for parking by Zoning regulations, he had not proven any damages. According to the Court "the right to enforce the violation of the [zoning] ordinance rests entirely with the municipal authorities, not the Appellee." This case may tend to suggest a trend that the Courts are becoming more reluctant to terminate an easement.
The case of Tanglewood Neighborhood Assoc. v. Carter reaffirms the concept of a reciprocal easement. Specifically the Court noted that "a reciprocal easement is implied when it is necessary to the beneficial enjoyment of an express easement." The Court made clear that the elements of an easement were not met by the arose as a result of an adjacent landowner’s failure to properly build a road sufficient for the roadway easement.