I recently received an inquiry about a small portion of a driveway that allegedly encroached on my client’s property. The inquiring attorney was representing my client’s neighbor who had entered into a contract of sale. The survey exception in the buyer’s title report had apparently included this small driveway encroachment and the buyer asked that it be “cleaned up” before accepting title. Spoiler alert: a more detailed review of the title subsequently revealed a prior easement which resolved the issue.
Perhaps coincidentally, another one of my clients encountered a nearly identical encroachment approximately one year ago. The scenario goes as follows: developer purchases a large tract of land, obtains subdivision approval, designs a cul-de-sac and driveways peel off the cul-de-sac to various houses. Without pointing any fingers, a sliver of the driveway (as built) leading to the residence on Lot A “clips” the corner of adjoining Lot B such that a small triangular shaped portion of the driveway encroaches on Lot B. Sometimes this discrepancy is noticed on an as-built survey and resolved pre-sale, by deed or easement and sometimes it goes unnoticed until years later when the original owner goes to sell and the driveway encroachment rears its ugly head.
While this issue is usually minor and may be resolved amicably with a simple deed or easement, it could take some time and cost both parties attorneys fees, title fees, and surveyor fees. Best practice of course is to avoid the encroachment altogether by clearly staking the property boundary in the field prior to construction.
To speak with an experienced real estate attorney about driveway issues in New York, please call us at (914) 338-8050 or send an e-mail to keith@betenskylaw.com. For more information about the firm, please visit www.betenskylaw.com.
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