The Big Easement Question

**bclever** · 06-28-2009, 04:36 PM

I could use a little advise about a situation. Hopefully someone can help.

My neighbor who's driveway is 3'3" on my property (and always has been since 1952) is currently getting a divorce and selling his house (he closes on thursday). He has approached me about signing a deed of easement for that part of the property. My guess is that the buyers are making him do this as part of the contract. After some research, i've found that in order to be legal, there must be some form of "consideration" (something of value) give to, and accepted by me. In this case the legal document says $1.00. Another valuable part of the story is that his house is a bit of an eyesore, and the new people moving in are going to be doing a considerable amount of rehabbing.

My real estate agent told me that it would be a good idea to talk to the buyers and 1. determine what their intentions are for that part of the property and 2. determine exactly why they want this signed and fully legal. Then if everything seems cool, just sign it and move on.

However, 2 real estate opportunists that i've spoken with say that I should try to make money off of this. One guys says to determine the percent of property and the value of the lot and try to get 150% of that from his sale. Another guy says to just cross out $1.00, write in $1000 and initial it.

I would appreciate any thoughts on this situation. I want to be a good guy and help this guy sell his house -- especially since the new people are going to be really fixing it up. However, i don't want to pass up an opportunity to make a buck myself.

Is this a common situation? Am I just being greedy? Or am I being logical? If so, what would be your suggestions for continuing?

Thanks in advance.

bc

**Greg** · 06-29-2009, 08:30 AM

The laws vary from state to state but in NC we have what is called "Adverse Possession". The way this works is when a neighbor is allowed to use the neighboring property for a certain amount of time they are then allowed to use it forever. If your state has this then you no longer have any right to deny the neighbor, regardless of ownership, the use of the driveway.

The reason they are trying to get it formalized might be because the lenders are nit-picking every part of a deal these days. If you don't cooperate you might kill the deal and end up with a pissed off neighbor who you are already trying to get rid of.

On the other hand, if you sign it you might be giving up your rights to a portion of your property and, depending on lot size requirements where you are, might cause you harm when you go to sell or if you have to ever rebuild.

Before you relinquish any rights to your property, regardless of any money involved, you should have an attorney, independent of the neighbor's transaction, look over the paperwork.

Maybe your neighbor will foot the bill for your attorney.

**bclever** · 06-29-2009, 06:06 PM

I ended up contacting the buyers agent today to determine if 1. the easement signing was a deal breaker, and 2. what where the new buyers intentions. I let them know that I was comfortable with the situation as it was, and if were to ever sign the deed, then I would want to do it with them as opposed to the current neighbors.

Everything is working out so far and i plan on meeting with the prospective new buyers tomorrow when they do their final walkthrough. The more i think about it. The less that I'm caring about making a buck.

Thanks. Would still love to hear additional thoughts from whomever.

bc

**kevin@BootStrapLearning** · 06-30-2009, 10:16 PM

Originally Posted by Greg

The laws vary from state to state but in NC we have what is called "Adverse Possession". The way this works is when a neighbor is allowed to use the neighboring property for a certain amount of time they are then allowed to use it forever. If your state has this then you no longer have any right to deny the neighbor, regardless of ownership, the use of the driveway.

Close. The case as stated would not be adverse possession but easement by prescription.

Before you relinquish any rights to your property, regardless of any money involved, you should have an attorney, independent of the neighbor's transaction, look over the paperwork.

Maybe your neighbor will foot the bill for your attorney.

This is what I would do. Consult a real estate attorney to understand exactly what it is being asked of you and what you are giving up. Determine a value of the easement and ask for that value. Include your attorney fees in that assessment.

You are giving up a right to your property. Asking fair compensation for that has nothing to do with being a nice guy, in fact, if the new neighbors have a problem paying a fair price for this easement, they are the ones being unreasonable.