Legal Question in Real Estate Law in Massachusetts

a property line runs primarily in the middle of a driveway which is shared. Owner #1 has been maintaining it and using it for accessing their garage under for 54 years. Owner #2 has another driveway for normal use, but uses this shared driveway to access their detached garage that they use for storage, only on occasion. (owner #2's detached garage is positioned off to the side, is entirely on their own property but sits right near the property line, probably not meeting side setback requirements) There has never been anything in writing for an easement or anything referencing any agreement on the driveway's use in the deed. Both owners have never had any issues with this set up, but now owner #1 is selling the property. How would would you explain to future buyers wanting legal clarification for this set up?


Asked on 1/15/12, 11:44 am

1 Answer from Attorneys

First, I would have an attorney check the title to determine if there is anything in the title with respect to the driveway. If not, I would ask owner #2 to enter into a mutual easement so that both parties are protected for the current uses.

You both probably have an easement by prescriptive use (similar to adverse possession) however having a simple agreement for the driveway drafted, executed and recorded. That would clear any title issues for both the buyer and his or her or their lender.

If you need assistance with this please feel free to contact me.

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Answered on 1/15/12, 5:47 pm


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