November 1, 2012

By Keith R. Betensky, Esq; (914)338-8050;

Shared driveways are a relatively common phenomenon in Westchester County, New York.  While shared driveways can provide efficient access to multiple residences, help mitigate environmental impacts and address traffic safety issues, they can also lead to disputes regarding maintenance and repair, snow and ice removal, landscaping, trespass, nuisance, control, and compliance with municipal land use permits.

Shared driveways in New York are governed by statutory law, case/decisional law and local municipal zoning requirements.

Section 335-a of the New York Real Property Law provides an easement of necessity for landlocked parcels without public access.

The Supreme Court, Suffolk County recently decided a shared driveway case entitled Capersino v. Gordon, 35 Misc.3d 1222(A) (Sup.Ct. 2012) in which the Court articulated the legal standard for an easement as follows:

[“[A]n easement can be created only by one who has title to, or an estate in, the servient tenement” (5–40 Warren’s Weed, New York Real Property § 40.10 [2007]; see Simone v. Heidelberg, 9 NY3d 177, 181–182; Matter of Estate of Thomson v. Wade, 69 N.Y.2d 570, 573–574). An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it (the dominant estate) (see Will v. Gates, 89 N.Y.2d 778). One does not possess or occupy an easement or any other incorporeal right. An easement derives from use, and its owner gains merely a limited use or enjoyment of the servient land (Di Leo v. Pecksto Holding Corp. 304 N.Y. 505 [internal quotations and citations omitted] ). Express easements are governed by the intent of the parties (see Lewis v. Young, 92 N.Y.2d 443; Estate Ct., LLC v. Schnall, 49 AD3d 1076). In determining the extent of an easement claimed under an express grant or reservation, the ordinary rules of construction and interpretation apply, which are essentially those applicable to other written instruments, and to deeds generally (see Henricksen v. Trails End Co., 303 A.D.2d 458, lv. denied 100 N.Y.2d 506; Route 22 Assocs. v. Cipes, 204 A.D.2d 705). As applied with respect to the grant or reservation of an easement, the primary rule of construction of deeds is that the real intention of the parties is to be sought and carried out whenever possible, at least when not contrary to settled principles of law or statutory prohibitions (see id.).”]  Id. at 3.

Local municipalities in New York can also regulate shared driveways in the context of site plan review, subdivision plat approval, area variances, and other local laws.

Thank you for your interest in this article.  If you have any questions about title issues, easements, restrictions, land use/zoning permits or other real estate concerns, please do not hesitate to contact us at (914)338-8050.  For more information about our firm, please visit our website at