Shared Driveway Adverse Possession

This week we wanted to bring your attention to an informative case out of the Second Department that addressed Plaintiffs’ claims for Adverse Possession, Easement by Necessity and/or Easement by Prescription related to use of a shared driveway. In denying all of the Plaintiffs’ claims, the Court held that the Plaintiffs simply failed to meet the threshold requirements necessary to support any of their proposed causes of action.
The relevant facts of, and a link to, the case is set forth below.

The owners of adjoining homes use a common driveway to access their garages. The dividing line between their parcels runs along the entire length of the driveway. Seven feet of the driveway’s width is within the Plaintiffs’ property; the remaining 10 feet of the driveway’s width is within the Defendants’ property. There is no written agreement as to the use of the driveway. The Plaintiffs asserted that they had a right to use the part of the driveway within the Defendants’ property based on their claim of having an easement by prescription or an easement by necessity.
In addition, the Plaintiffs had installed a fence in a space between the garages which encroached approximately five inches onto the Defendants’ property; the Plaintiffs claimed that they had title to that five-inch strip by adverse possession. The Defendants asserted a counterclaim to compel the Defendants to remove the fence.
The Supreme Court, Kings County, held that the Plaintiffs had neither title to the five-inch strip by adverse possession or an easement by prescription. The Appellate Division, Second Department, affirmed the lower court’s Order and remitted the matter for entry of a judgment declaring that the Plaintiffs did not have an easement by prescription or necessity and did not acquire title to the five-inch strip by adverse possession.
As to the claim of adverse possession, applying Real Property Actions and Proceedings Law (“RPAPL”) Article 5 (“Adverse possession”) prior to its being amended in 2008, the Appellate Division found that the fence was not a substantial enclosure, and the five-inch strip was not usually cultivated or improved. Under Article 5, “… where, as here, the adverse possession is not founded upon a written instrument, the possessor must also establish, in accordance with the law in effect at the relevant time, ‘that the disputed property was either ‘usually cultivated or improved’ or ‘protected by a substantial enclosure’ [citation omitted].”
As to the claim of a prescriptive easement, according to the Appellate Division, “[e]ven if the plaintiffs established that their use of the driveway on the defendants’ property was open and notorious, and continuous, the defendants demonstrated that they permitted such use because…they preferred to be ‘good, accommodating neighbors’.”
Lastly, as to the claim of an easement by necessity, according to the Appellate Division, “courts have repeatedly rejected claims to an easement by necessity over a driveway where the ‘sole claimed ‘necessity’ for the easement is the ‘need’ to access off-street parking,’ as ‘[t]hat purported need is nothing more than a mere convenience’ [citations omitted].” Bolognese v. Bantis, 2023 NY Slip Op 01771, decided April 5, 2023, is posted at https://www.nycourts.gov/reporter/3dseries/2023/2023_01771.htm