Right of Way

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Right of Way

So I have an interesting situation. I have an easement to use my neighbors driveway to access my property. I have a concrete driveway on the right hand side of my house and a gravel driveway on the other side of my house. My neighbor wants to put up a fence going across the right of way. The problem is with this fence I wont be able to access the gravel driveway on the left hand side of my house without driving through my front yard. What are my options? I tried talking to my neighbor but he got very belligerent and nasty at me stating he owns the driveway and he can put a gate up if he wants. I tried to compromise and it went nowhere. I understand he can put a gate up but it won’t let me access the left hand side of my house without tearing up my front yard.

Asked on February 12, 2017 under Real Estate Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

You write that you have an easement. If you actually do have an easement--it is on the deed to your home--you can enforce that easement in court: if the neighbor tries to obstruct it, file a legal action (lawsuit) in chancery court (a part or division of county court) requesting a declaratory judgment (court determination) confirming the easement and an injunction (court order) barring the obstruction. This kind of a lawsuit is more complex than, say, a claim for monetary compensation in small claims court and you'd likely want to hire an attorney to help you.
If it's not an actual easement on the deed, but is just permission that you've had over the years to use the right of way, then the neighbor can likely withdraw it and put up the fence. Because you *can* access your back driveway over your front yard, it is not absolutely vital (even if it is desirable) to use the neighbor's property; therefore, if you did not aready have an actual easement, a court would most likely not grant one now (which is what you'd need, if there is no existing easement--you'd need the court to grant or create one), since such easements by necessity are only granted when absolutely necessary: i.e. when there is no way to access otherwise "landlocked" property except over a neighbor's property. They are not granted just to allow a property owner to avoid having to modifiy (e.g. connect the driverways) of his own property.


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