Shared Driveway Agreements – A Homebuyer’s Guide

Photo by Finn Mund on Unsplash

You’re in contract to purchase a home and everything is going great, until… Out of the blue, you get a phone call or an email from your lender: you need a Shared Driveway Agreement to complete your purchase.  

This isn’t uncommon, but it can add confusion or surprise to the process of buying a home.  

The good news is, they’re put in place to protect you – to create security and peace of mind.  

Here are answers to common questions to help you better understand Shared Driveway Agreements.  

What is a Shared Driveway Agreement?  

I’m going to put on my lawyer hat here for a minute to explain… What is a Shared Driveway Agreement? Well, it’s a type of easement. But what is an easement? That’s the right to use someone else’s land. A Shared Driveway Agreement is a type of easement that affects multiple property owners.  

So, when you have a Shared Driveway Agreement, what it means is that you have a legal document prepared by a lawyer granting mutual rights to neighbors to share a common driveway.  

The driveway could be gravel, paved, dirt, or something else, but the right of access to that driveway crosses over a shared boundary line. This may affect two properties, or more. I’ve even seen a case where we drafted a Shared Driveway Agreement for 5 property owners!  

Why would property owners need to share access to a driveway?  

There’s a general principal in the law that all parcels of real estate must have access to public roadways. Otherwise, legally, it’s considered trespassing across other’s property when you try to get across your property to that public roadway.  

A property owner, or someone buying real estate would need shared access to a driveway when their land is located in a position that is otherwise land locked, meaning that property doesn’t have access to a public road.  

How can you find out if you need one?  

As we’ve covered, a property owner must have legal access to physically get to a public road. You need to have a Shared Driveway Agreement drafted when there is not already an easement recorded but there is physically a driveway that is crossing boundary lines and would cause someone to trespass, by definition of the law.  

Typically, your title insurance company will identify a lack of legal access/easement during the title search and call it out on a title insurance commitment. Then, the mortgage lender reviews the title commitment, and will require that the parties have a Shared Driveway Agreement as a loan contingency. 

Why would your lender and title company require buyers to obtain a Shared Driveway Agreement?   

Well, it’s important to the lender because in securing your loan, they have an obligation to protect the mortgage if they ever have to foreclose and take back the property. So, the lender looks at this situation and says it’s a loan underwriting requirement to have a Shared Driveway Agreement in order to put a mortgage on this property.  

The title insurance company wants to insure the title to your property, and to do so, they need to show there’s at least a legal easement in place, to prevent disputes in the future.  

What information is covered?  

You can have a variety of different terms, but a typically a best practice is to define the location of the access easement and the maintenance provisions.  

Ideally, it will define who is going to be paying for what and who is doing what in regard to maintaining the easement. In most situations a shared driveway is paved, but sometimes it’s gravel, or something else. But someone will need to repave it, repair potholes, or replace the gravel from time to time. It’s also important to define who is responsible to clear snow, ice, or other items. In a best-case scenario, every detail would be spelled out.  

How can you get a Shared Driveway Agreement?  

Typically the process begins when the requirement gets made in order to complete the sale transaction of behalf of the buyer because the buyer and lender both have a reason to need an easement to be drafted. And then the lender specifically wants a shared driveway agreement which governs the maintenance provisions of that.  

But who drafts it? Typically, a lawyer as it’s a legal document.  

In Ohio and Kentucky the title company typically hires a lawyer on behalf of the parties, so the title company may outsource this to a lawyer. Sometimes title agencies have a law firm that they are associated with, or their owner is a lawyer, so then that law firm or attorney may draft the document on behalf of either the lender who is requesting it or the buyer who needs it in order to be able to buy the property and put a mortgage on it.  

In the event you’re purchasing property and find you need an easement like this, it’s a good idea to hire your own attorney to draft it to ensure it protects your interest. 

Because if you don’t, the referred lawyer will most likely draft the agreement in a neutral way, instead of drafting it for the interest of the future buyer (you). Sometimes there are additional interests that may come into play, therefore it’s advisable that the buyer needs to have their own counsel.  

If you’re searching for a property and you don’t have real estate counsel, that’s ok. Be sure to write in a 7-day review period into your offer letters, and then when you go into contract, reach out to a professional right away.  

Often, hiring a lawyer can feel like an unnecessary expense in an already expensive and overwhelming process. But for buyers and sellers alike, the value of hiring an attorney to help you navigate your real estate transaction is to help you avoid running into issues that could become very expensive down the road. And when you’re investing hundreds of thousands of dollars into something you’ll own for potentially decades, it’s wise to be as proactive in protecting yourself as possible. 

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🚨 DISCLAIMER: The blog published by Northwest Law is available for informational purposes only and is not considered legal advice on any subject matter. By viewing blog posts, the reader understands there is no attorney-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a licensed professional attorney, and readers are urged to consult their own legal counsel on any specific legal questions concerning a specific situation. 

Estate Planning Solutions

By: Kristen Humphrey-Schulz, Esq. | Associate Attorney

What is an Estate Plan?

With the start of the New Year comes new challenges, resolutions, and a time to re-evaluate aspects of your life.  Perhaps this new year you plan to work on items you may have put off or ignored.  One of those items may be your estate plan.  An estate plan is the collection of legal documents that address the management and disposal of an individual’s assets after their passing.  Those documents may be a last will and testament, a trust, power of attorney, health care power of attorney, living will, and/or transfer on death affidavit, depending on your state of residence. 

A common misconception many of us have heard: I only need an estate plan if I am wealthy, elderly or have children.  These misconceptions are why many individuals ignore or set aside estate planning until a later date, which may prove detrimental to your loved ones upon your passing.  An estate plan is not only for a select group of people, but rather is for anyone at the age of majority who wishes to pass their assets and ease the burden that family members bear when handling a loved one’s estate.  Even if you are young and single with no children, you have assets, and those assets may be subject to probate upon your passing.  An individual or family seeking to begin the estate planning process should first contact a qualified estate planning attorney to discuss their needs.  

Here we will address some of the most common questions we receive regarding estate planning to shed light on the importance of a properly drafted estate plan that effectively conveys your wishes.

Estate Planning Tools 

There are a variety of estate planning tools, however estate planning tools are not one-size fits all, where each document is almost identical for each person.  Rather, an estate plan is comprised of a combination of a few or in some cases many estate planning tools.  Documents such as a power of attorney, a healthcare power of attorney, and living will may augment an estate plan.  In other cases, an estate plan may only consist of a last will and testament and a living trust.  What tools are utilized in each plan are specific to the individual circumstances and wishes of the client.  Discuss your wishes with an estate planning attorney to develop a custom estate plan tailored to those needs. 

Last Will and Testament

Fact or fiction: Does having a will avoid probate of my assets?  We often hear this common question and too often we hear the falsity that a will avoids probate, when in fact, a will is not even designed to avoid probate.  Rather, a will is a legal document that details how an individual desires their property be distributed after death through the probate process.  While this tool is not designed to avoid probate, when drafted properly, a will can be a helpful tool to augment your estate plan.  And understanding what is a will is a vital step towards having a comprehensive estate plan.  

You may then find yourself asking: can I draft my own will?  While there is no legal requirement that an attorney must draft your will, by drafting your own will, you run the risk of costly errors that affect how your assets are distributed to family and friends upon your passing.  Therefore, it is always recommended to seek the advice of an estate planning attorney to have your will drafted.  Naming beneficiaries is an important aspect of a last will and testament along with naming an executor of your estate.  An executor is to be a trusted individual who carries out the terms of the will.  In many cases, individuals will name a close family member as executor or co-executors, such as a spouse, parent, or child 18 years or older.  If an executor is not properly named, the designation of an executor will be determined by the probate court, which may not always align with who you would choose.  

In addition to having a properly drafted will, you cannot overlook the importance of a properly executed will.  In the state of Ohio, a will must be witnessed by two disinterested witnesses.  If this requirement is not met, the will is not valid.  That begs another important question: who are disinterested witnesses?  These are individuals that have no bearing or interest on the designations you made in your drafted will.  Family members are usually interested parties and not appropriate to serve as witnesses.  Ideally seek an outside party such as bankers at your local branch, nurses at the hospital if you are signing a will there, or office staff, to name a few options.  And once you sign your will and it is properly witnessed, it is effective indefinitely, unless you revoke the will or make changes, known as codicils, prior to your passing.  

There’s Usually More to An Estate Plan than a Will 

While the will is an important estate planning tool, it certainly is not the only tool.  Most estate plans utilize a combination of tools to create beneficiary designations.  Further, estate planning tools are not all designed to determine after death distributions, but tools such as a living will, power of attorney, and living trust are utilized during the life of the grantor.  

You’ve likely heard of a living will, if you’ve ever had a hospital visit, you’ll know the hospital almost always asks if you have a living will.  That document is very important to health care workers, as it is a legal document that outlines terminally ill and end-of life healthcare wishes.  Preparing a living will helps your loved ones by alleviating the burden to make critical decisions for you when you are no longer able.  Powers of attorney are other legal documents effective during your lifetime that allow you to appoint an agent to make decisions on your behalf for items such as healthcare and financial items, if you lack the capacity or are unavailable to do so.  

Now what about a trust?  We often receive these questions: do I really need a trust?  And if so, what type of trust?  A trust is a versatile estate planning tool that comes in many forms and can be revocable or irrevocable.  This tool can be utilized to ensure assets in the trust are distributed according to the grantor’s wishes and even provide protection for those assets. Determining whether a trust would be a useful tool to augment your estate plan is to be discussed with an estate planning attorney, as that answer varies based on individual goals, circumstances, and assets.  And when properly drafted, a trust can often avoid probate.  

Reviewing Your Estate Plan

Once you have an estate plan, don’t simply put away your documents and never look at them again.  Updating an estate plan can be just as important as the act of making an estate plan.  Circumstances change throughout life, and changes often call for an estate plan update.   Events such as the birth of a child, a child reaching the age of majority, divorce, or death of a loved one are a few examples that would usually warrant immediate changes to an estate plan.  In general, reviewing an estate plan every five years or so will give you the chance to go over your wishes and see if anything needs updated.  

Updates to an estate plan are often a small change such as an amendment to a living trust, but can also be very consequential, such as revoking a will and having a new one drafted.  Reviewing your estate plan with an estate planning attorney is a critical step of the estate planning process that may be overlooked.  If this step is ignored, the beneficiary designations in place upon your passing may not accurately reflect your wishes.  For example, if you are married at the time your estate plan is crafted and you express in your documents you wish to leave all property to your spouse, and you later divorce but do not update your estate plan, your property may be distributed to an ex-spouse even if that was not your intention.  

Final Thoughts 

Now what if I understand the importance of an estate plan but don’t know where to begin?  If you think estate planning is a daunting task, do not fear, with proper direction, it can be accomplished with minimal stress compared to the potential stress created if you do not have an estate plan.  Contacting a qualified estate planning attorney is the first step.  When you schedule a meeting with an estate planning attorney, it is important to prepare.  Consider your final wishes, account for your assets, make a list of questions, and gather important financial and legal documents to share with your lawyer during the meeting.  And once you have the estate plan in place, you can check off one item on your list of resolutions for the New Year.