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Marshall, Roth & Gregory, P.C.
A Legal Moment
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90 Southside Avenue,
Ste 100
Asheville, NC 28801
Shared Driveways, Alleys and Nightmares
    Shared driveways, private roads, and alleys, “Oh my!”  Although everyday we probably drive over somebody’s private road or alley, we give little thought to it until one of two likely unwelcome events occur; (1) a lender is requiring a “shared driveway agreement” prior to closing, or (2) the roadway needs repairs and someone is knocking on your door for money. 
   In this edition of A Legal Moment, our guest writer, Kip Marshall, will first identify the most common title interests involved, describe the basic rights of ownership, and recommend some steps to take to protect your client’s interests in these shared ways.
  Shared driveways, private roads and alleys come in a confusing array of configurations; the “Y” driveway which straddles the boundary line of two homes, the “fish bone” or “flag pole” road which passes through and serves as access to multiple parcels, the cul-de-sac hub or the back alley which is the service entrance to a line of commercial establishments.
   Almost all of these shared ways are, in legal parlance, “appurtenant easements,” which is an easement created for the purpose of benefiting particular land.  This type of easement attaches to and passes with  the ownership of the land(s) it benefits. It cannot legally exist apart from the land it benefits.
   One who has an interest in the way (the dominant or beneficial owner) has the right to use it in the manner and scope agreed to; but, also has the responsibility to maintain it for his purposes. The one who owns the land upon which the way is over (the servient owner) may use his lands including the location of the way in any manner which is not inconsistent or does not unreasonably impair the intended use of the way by the dominant owner.  When landowners are both dominant and servient in the same way, each has mutual duties to the other landowners.
   In an ideal world, all such easements are clearly and concisely written into a deed or a planned development document.  Unfortunately, many of these easements arise by less formal an ill-defined methods; a pattern of common usage, unplanned family subdivisions, intentional or unintentional construction or, simply, neighbors’ agreements. The use of the way or the alley is limited to the land it is “intended” to serve.  Unless by mutual agreement, its use cannot be extended to other lands or landowners.
   The best protection for an owner of land that utilizes a shared driveway or alley is to ensure that his or her interest in the way (and the scope of its use) is recorded regardless of how the shared way originally came to be.  This provides the legal title interest in the way.  But how the way is shared and who is responsible for maintenance, upkeep and safety may not be spelled out in the title document.  The users and landowners of the way need to also enter into and record a Shared Driveway Agreement, Alley Maintenance Agreement or Road Maintenance Agreement.  If at all possible, these agreements should identify and allocate maintenance responsibilities and costs, manner of use and  apportionment of liability and indemnification.  It is best if these title documents and driveway agreements are drafted or reviewed by an attorney familiar with easement rights.
   Realtors should keep a keen eye out for these shared access issues.  They should be addressed with the potential seller as early as possible.  Further, they should be disclosed to potential buyers and closing attorneys as is necessary to ensure the protection of the rights of the respective parties.  If there is not a written and recorded maintenance agreement for a shared way, a buyer is unlikely to get loan approval for a property using it.  For this reason, it is critical to investigate and document shared ways before or during listing property for sale.
   Every year we identify and try to resolve a number of shared driveway or alley way issues, both recorded and unrecorded.  On most occasions, everyone is willing to work with one another to preserve their mutual interest in the driveway or alley.  However, it is not unusual for costly litigation to erupt over rights and ownership of the way.  The sooner that the landowners and users of the way can codify and record their respective rights and interests in the shared way, the better it is for all involved.  It is the proverbial “pay me now or pay me later” situation. 
♢ ♢ ♢
   Clifford “Kip” Marshall, is a trial attorney with and President of Marshall, Roth & Gregory, PC.  His practice encompasses all forms of land and title litigation, commercial litigation and catastrophic injury.  Please do not hesitate to contact him ( or me ( to receive more information on this topic or to suggest topics for future editions of 'A Legal Moment'.
   You may not rely on this content as legal advice for any specific situation, but should instead contact an attorney for specific advice.
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Marshall, Roth & Gregory, P.C. • 90 Southside Avenue Suite 100 • Asheville, NC 28801
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