What are my rights regarding a driveway that I have been using for the past 12 years?
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What are my rights regarding a driveway that I have been using for the past 12 years?
It runs through another portion of land not owned by me. The road as been used for more than 50 years as a driveway. If a new owner of that land takes over can or does he have the right to just shut if off leavng us no access to our home?
Asked on October 29, 2012 under Real Estate Law, West Virginia
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
A new owner cannot shut off access to your home.
You have a claim for adverse possession to the driveway. Adverse possession requires continuous, hostile, open and notorious, and actual use of the property for the statutory period.
You have been using the road as a driveway continuously. Your use is hostile which means in derogation of the true owner's rights. Your use has been open and notorious, which means the true owner has had notice of your use of the road/driveway. Your use has been actual and has been for the statutory period. The statutory period in West Virginia is 10 years, and you have used the road/driveway for 12 years. Therefore, you have satisfied all of the above requirements to assert a claim for adverse possession (also called a prescriptive easement) to the driveway/road.
It is unlikely that your adverse possession claim would be defeated, but if it is, you could argue as an alternative that you have an easement by necessity since the road/driveway is the only entrance / exit to your property.
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