What constititutes a prescriptive easement?

I’m interested in purchasing a lakehouse with a shared driveway. The 2 original homeowners built their homes at the same time 23 years ago. A concrete driveway runs the length of Homeowner A’s property parallel to Homeowner B’s property line. Homeowner A “verbally” agreed to share his driveway with his neighbor. This continued for 16 years until Homeowner B sold his home to the current residents, who’ve had the same verbal agreement from Homeowner A to share the driveway for the last 7 years. If we purchase the home, Homeowner B has “verbally” agreed to allow us use of his driveway too. However, if he sells his vacation home 2, he said the ne owners may not abide by this agreement. Isn’t this a “prescriptive easement”?

Asked on September 14, 2012 under Real Estate Law, Louisiana

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

It is my understanding that on the state of Louisiana  - the state which you list here - "easements" are called "servitudes" under the law.  There are two types: a predial servitude and a personal servitude.  I think that your situation involves the latter. A charge or burden on something for the benefit of an individual is a personal servitude. There are  three types of personal servitudes: usufruct (use of the property for benefit as long as it is not damaged), habitation, and right of use (similar to an easement while allowing use of the property but denying full enjoyment of the property). I believe that you have a right of use here.  It may be best to speak with an attorney about it and see if it can be written in to the deeds of the homes (for a price I am sure it can be).  Good luck.


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