How do I know if I have a Constructive Easement on my Property?

Question: I’ve been living in a house for 15 years and have always used a back driveway to get from my garage to the street. The back driveway is partially built on my property but the actual access to the street goes through the neighbor’s house. I built the driveway a long time ago. Now, new people have moved into the house and they said that I can’t go on their land to get out anymore. Don’t I have a constructive easement on the property, since I built the driveway after all?

Response: The answer to your question varies depending on state law. In many jurisdictions, if you have nothing in writing, you may have something called an implied easement by virtue of your apparent prior use. An implied easement, which I believe you are referring to as a ‘constructive easement,’ is an easement where nothing exists in writing, but there is reason to believe that an easement exists. Implied easements can be created when it is clear that the landowner intended to give you an interest in the land. Since you built the driveway and have been using it regularly, this may be sufficient to establish that your use of the property was apparent to the new buyers. If your use was apparent and they bought the land knowing that you use the driveway, your implied easement may be held by a court of law. If they continue to state that you are not entitled to use the driveway, you may wish to speak with an attorney who has experience with implied easements and who may be able to establish that a constructive easement was in place between you and the previous landowners.

Answered by Christy Rakoczy

Additional Resource: Property Easement Laws

Disclaimer: This site does not provide legal advice and users of this site should not interpret any of the information presented here as legal advice. The information provided merely conveys general information related to commonly asked legal questions. We are not a law firm and the employees responding to questions are not acting as your legal attorney. You should ultimately consult with a lawyer for your case.