Neighbor Disputes | Right-Of-Ways

By Todd Fratzel on Design

neighbor disputes Neighbor Disputes | Right Of WaysProperty Right-Of-Ways

A friend of mine is going through a dispute with a neighbor about a right-of-way and I thought it was worth sharing. Many pieces of property have legal right-of-ways that grant access to pieces of property for many reasons. Furthermore, many property owners arean’t always aware of the right-of-ways and the significance of them. Most right-of-ways are commonly described as easements.

An easement is a legal term used to describe an “interest” to use a piece of land that you do not physically own. For example, your neighbor owns a piece of land directly behind your land and he does not have direct access (frontage) to the road. However, he has an easement deeded to him with his land that allows him to use a specific piece of your land for that access. The easement would contain very specific measurements and language indicating exactly where that access occurs on your property. This is very common with land locked pieces of property that have no frontage on a road.

Common Property Dispute

So my friend owns a piece of land that has no frontage to the nearest road. However, she does have a deeded right-of-way or easement across her neighbors land that grants her access from the public road to her property. Her neighbor that owns the land which the easement is located on wants to build a garage on his land within the easement. As  you can imagine this creates a very big problem for my friend as far as her deeded access. This is a very common problem that arises when one property owner wants to build or alter in some way an easement that has been in existence for many years.

Luckily for my friend she was notified by the Town Zoning Board of Adjustment about a public hearing in which the neighbor was asking for a variance in order to build the garage within the towns legal property setback. Abutters are always notified about Zoning hearings in the State of New Hampshire. When she attended the meeting she was suprised to learn that no one from the town was aware of her easement and right-0f-way to her property.

She was able to show the Zoning Board her deed and ultimately prevent the neighbor from building his new garage within the easement. What I wanted to point out is how important it is to attend public hearings when you are identified as an abutter. I also want to point out how important it is to read your deed occasionally and understand what rights are attached to your neighbor or the general public with respect to your property. Had my friend not attended that meeting it’s very likely that the neighbor would have been granted a variance to build his new garage. This is not to say that she could have taken the neighbor to court and had the garage torn down, but you can imagine the cost and aggravation that would have caused.

What are your thoughts? Have you ever had a dispute with a neighbor regarding property rights?

About the author

Todd Fratzel

I'm full time builder for a large construction company in New Hampshire. I run their design-build division that specializes in custom homes, commercial design-build projects and sub-divisions. I'm also a licensed civil and structural engineer with extensive experience in civil and structural design and home construction. My hope is that I can share my experience in the home construction, home improvement and home renovation profession with other builders and home owners. I'm also the author of Tool Box Buzz and Today's Green Construction. Please feel free to contact me if you have any questions, suggestions or you'd like to inquire about advertising on this site.

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22 Comments

  1. Paul says:

    Todd, this is an interesting subject for me. We have an easement to our neighbor’s well and well water! There is a pipe that goes under the road and terminates in our basement. We don’t use it and likely never will since we have our own well. Still, it is on our deed. I am not sure why they would do this, other than it was expensive to drill a well back in the day.

    • Todd says:

      @ Paul – I’ve never heard of an easement that drastic. It’s amazing some of the things that you find in deeds. I wonder if the owner of your property sold the other property and retained his right to the well on the other property? Very interesting indeed. I’m also amazed at home little most folks know about their property and the deed. I just filed for a tax abatement because 1/3 of our property has drainage and slope easements that the town isn’t recognizing in their assesment.

  2. Tara says:

    Hi I have a neighbor who has a deeded right of way through my property to his landlocked property. We (and they) are great neighbors and good friends and we both have large 50+ acreages. We have recently built a new house for ourselves on our property and our contractor who has repeatedly proven himself completely irresponsible has placed our new septic tank just inches below grade and encroaching 7 feet into the 50 foot easement. My neighbor is concerned only due to repercussions that may come up if he ever has to sell the property. My contractor obviously doesn’t want to incur the expense of moving the tank and claims that the easement is criss crossed with buried power water and septic lines fom the old house anyway. Will this buried (just) tank become a legal issue if my neighbors try to sell their property?

    • Todd says:

      @ Tara – I’m not a lawyer but I think this is a fairly big deal. Wires, pipes, misc utilities are not that big of a deal, however, an actual structure like a septic tank is another issue. Now is the time to force him to fix the situation. Now if he was not aware of the right-of-way then it may be difficult to force him to move it. In my state of NH septic systems are built according to plans and they are checked by a state inspector. The plans must be accurate and everything must be built according to the plan. It’s also possible that your septic tank is not rated for vehicle traffic which would pose a problem with the right-of-way. Call an attorney or just tell him to move it. Best of luck!

  3. elaine says:

    My mother bought a house for me six years ago. A 30 foot easement which is a path has been used all this time. Recently a neighbor who’s land adjoins ours said I could not use this road anymore because it goes over about 10 feet of her land when I make a turn off the easement. My house address uses the path’s name. Can she legally deny me access to my house using this egress?

    • Todd says:

      @ Elaine – First let me say I’m not a Lawyer and questions like this are best presented to an attorney. However, if you have a true easement across your neighbors land then you absolutely have the right to use it. I would start by reading your deed and finding out what language is in it about the right of way. It’s very likely that you’ll need to get a surveyor involved and I would actually start there. If you don’t know exactly where your property pins are then you need to have them established to accurately figure this out. Best of luck!

  4. Dennis Kelley says:

    Hello, my question is about my shared driveway. I own the drive way
    and i get along with the nieghbor who has a right of way to his garage, however often he has my drive way blocked by his vehicles,
    repair companys, fuel trucks, visitors, etc etc. and i have to wait
    to get out of my drive way. If i park long enough to bring my groceries into the house and they want to get into thier garage and
    cant imediately they get extremly mad. I would like to know if i
    have any rights as i am the owner of the drive way. thank you in
    advance. Dennis Kelley

    • Todd says:

      Dennis – First off let me say I’m not an Attorney so I can only give you my experience from serving on a planning board. From the little I know there’s little that can be done other than to try and work it out, deal with the police or figure out a new arrangement that would make it easier for both of you to access your land. Having a right of way gives them pretty much the same rights as you.

  5. Veronica says:

    Todd my mom is buying a house and the garage is shared by two separate owners, my mom and the neighbor, at one point this entire property was owned by one person. So now that it’s split the neighbor shares a piece of the garage. Now my moms neighbor wants to knock down his part, my mom doesn’t have the money at this time to knock her part down. My question is can the neighbor do that?

    • Todd says:

      Veronica – Sounds like a classic struggle between neighbors that share property. The answer to this probably is written out in the Deed. The deed should spell out issues about maintenance, use, ownership, etc for that garage. It’s quite likely that both parties would have to agree on tearing it down unless the garage is in such dis-repair that it is considered a health and safety risk. Unfortunately I’m not a lawyer and issues like this are best handled with legal counsel. Good luck.

  6. Lisa says:

    I am living in a house that is part of my mother’s trust – she is elderly and lives with me and I will inherit the house. Originally, the property was about 4 acres with a house. My parents added a barn with a second driveway, then later added a house for my grandparents with their own driveway on the other side of the barn. After my grandparents passed on, that house was rented. Eventually my parents sectioned off the house with one acre and offered it as rental with option to buy to one tenant, who ended up purchasing it and has lived there about 15 years. Originally this neighbor was quiet/nice and we’ve had no disputes in the 2 years I’ve lived here. She has become accustomed to driving in her driveway, over my lawn, and out the driveway to my barn. It didn’t matter much when it was just her, but she has recently added her daughter and son-in-law to the household and they have a lot of friends/relatives. Now it’s like a freeway. I was told by several attorneys, insurance agents, etc. that I should not allow them to establish a right of way through the property as it would create legal problems for years to come, so I blocked the driveway. Now they are furious and getting the whole neighborhood involved – even turning my own brother against me. Should I back down and let them drive through whenever they want? My insurance agent told me if I do, I’ll need to increase my homeowner’s liability and I really can’t afford it.

    • Todd says:

      Lisa – These situations are always very difficult to deal with. In the end you may very well want to consult with an attorney. When ever I see or become involved in one of these situations I really encourage both parties to try and come to a sensible resolution. Here are some things to consider.

      – The adjacent property really does need a legal right-of-way. Remember your family created the new lot which they sold, and at the time granted a “right-of-way”.
      – If you’re not happy with the current right-of-way it would make sense that you help them access the property from another location. This is especially true if the first right-of-way was granted in writing or included in the deed.
      – Without seeing the property it’s very hard to guess what solution is best. You might want to offer the land necessary for the right-of-way if they pay for survey and legal doc prep. Again, try to work together.

      At the end of the day, i wouldn’t recommend doing anything without legal counsel.

      Good luck.

  7. Susan says:

    There is a septic tank and driveway agreement attached to our property. The way I read it is the septic is between properties so we share the septic and the driveway. Real Estate Co was telling prospective buyers that we share water also while we were telling them they needed to drill a well. We had to have a well drilled because one of the neighbors broke ours. The agreement clearly states that the cost of repairs to septic and driveway is shared but there is absolutely no mention of the water or the well. While I realize you can’t use the septic without water we had to bear the cost of drilling a new well on our own and nothing is mentioned in the easement agreement that if something happens to the well we share the cost. So now they are basically threatening to sue us.

    • Susan says:

      I should also mention that we have talked with 2 lawyers who are in agreement with us. But I believe that the real estate company “should” have talked with us about it first. Bad enough that they never came down and showed the property. You called a number, they gave you combination to the lock. Which sent prospective buyers over to our house to ask what we knew about the house!!! And he is a carpenter so he knows EVERYTHING!! Including tearing down the flowering ivy I bought at Walmart saying it was poison ivy!! Cost us $7000 to drill well and they are only offering $2000 for the right to run lines but no offer to share the costs if anything should happen.

      • Todd says:

        I’m no lawyer so this is purely speculation at best. Seeing that there’s no agreement in place, seems only fair that each property has to have their own well. Now, in some situations there’s a well radius easement in place due to the proximity of a septic system. That allows an abutter to possibly drill a well on a neighbors property, but at their own cost.

        Good luck…sounds pretty crummy.

        • Susan says:

          Thank you!, We inherited the property after the death of my father who was the last one who would know what the story is. The property has been vacant since my aunts stroke in 1998 when they moved her back to Kansas City. My mother passed in 1999 and my aunt in 2000 and my father just let the property sit here uninhabited. Something went wrong with the well and my understanding is that the backyard neighbor tried to fix it and broke it. I guess my dad didn’t want to pay for a well when nobody was using the property. Just makes me wonder what if…my dad hadn’t passed and they bought the house next door and didn’t have water. I’m guessing they would have had to drill a well!!! It’s very aggravating!!!

  8. Rebecca says:

    If one party breaches the contract on an easement doesn’t that make the contract null and void and they can loose the easement and use of the property?

    • Todd Fratzel says:

      That’s a question for a lawyer. I highly doubt it though, an easement is a deed restriction, enforceable by the court. I doubt it cancels the deed restriction.

  9. Susan Baresel says:

    Sheriff says any easement disputes have to go through court before they can be enforced. Gahhhh!!! Pretty sure they are waiting for us to foot the cost but it’s almost been a year, they still have no water but they recently purchased a truck (WTH!!!!) So even though e have to deal with them being hateful towards us we’ll just let it ride

  10. Susan Baresel says:

    Now they’ve been overheard talking about building a privacy fence which would keep us from our share of driveway easement.

  11. Sean says:

    My neighbor has a right of way easement through my yard for his driveway.
    He wants to install a new bigger wider driveway and wants me to remove trees from my yard as well as regrade the land to avoid flooding.
    I already told him he could remove the trees but now he wants me to pay.
    Really?

    • Todd Fratzel says:

      Sean – First and most importantly this is really an issue for a lawyer. I’m not one and wouldn’t even want to pretend to be one! So get some real legal advice because these type of issues can get expensive if they get out of hand. Having said that, my understanding is a right-of-way is just a right to pass. MUCH different than a shared driveway that often has a legal document attached describing cost sharing for maintenance and improvements. So, it’s likely he has the right to modify the physical right of way in order to create a driveway. He likely has no right to ask for money, and no right to cause drainage impacts to your property. Again, these are issues best left to a lawyer. Good luck.

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