From: "Andrew Koenig" 
Newsgroups: misc.consumers.house
Subject: Re: Property Dispute - Encroacher won't accept easement!
Date: Fri, 15 Jun 2007 14:06:46 GMT
Bytes: 4129

"G-Dawg"  wrote in message 
news:lPkci.13$qR7.7@newsfe03.lga...

> We sent the neighbor a letter a long while ago giving her permission to 
> use
> the portion of the driveway on our property to access her garage. Now that
> the house is for sale, lawyers say we have to have an official easement
> filed with the town. My lawyer drew up the easement and all is good, 
> except
> my neighbor will not accept the easement allowing her to use her driveway!

> Does that make any sense??? Her lwayer told her to agree to the easement,
> she wouldn't so he quit. My lawyer went to her house to talk so sense with
> her, she still wants the land swap.

This sounds very much like a situation we encountered when we bought our 
house in 1983.

The survey revealed that our neighbors' driveway overlapped the property 
line by about 1 foot.  We didn't care about the encroachment, but wanted to 
be sure that the location of the property line was clear beyond question. 
Otherwise we might want to add onto the house later and be prevented from 
doing so because the addition would be too close to the property line.

So we asked our lawyer if we could just send them a letter noting that their 
driveway was overlapping on our property and giving them permission to use 
it.  His answer was surprising: Such a letter would have no legal weight 
because it would not be a contract.  He explained that in order for such an 
agreement to be binding, both parties have to give up something and gain 
something in return.  Merely giving them the right to use the land, and not 
getting anything in return, wouldn't mean anything.

We asked whether there was anything we could do to establish the property 
line beyond question.  His answer: No problem--just take a jackhammer and 
remove the offending portion of their driveway.  We didn't think that would 
be a real good way to deal with our neighbors.

So what we finally did was to offer them the following deal:  In exchange 
for their written acknowledgment that part of their driveway was on our 
property, we agreed to give them 60 days notice if we ever decided to remove 
that part of their driveway.  Now both sides were giving up something and 
getting something in return, and the contract was validly binding and could 
be filed with the county.

So if my recollection of the lawyer's comments are correct, and if the laws 
in your locale are similar to ours (we are not in Connecticut), it may well 
be that the letter you sent your neighbor has no legal effect.  In which 
case you might be able to hurry things along a bit by telling your neighbor 
that you are withdrawing permission for her to use the driveway, and unless 
your neighbor signs the easement by a particular date, you are going to 
remove the encroachment from your property.  Then show up with a 
construction crew and see what happens :-)

Of course, before you do anything like this, it would be a real good idea to 
check with your lawyer to find out whether the laws allow that now where you 
are, instead of in 1983 where we were at the time.  But it is an interesting 
thought.