The Driveway Is Shared. The Repair Bill Usually Is Not

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Drive through Parma, Old Brooklyn, or the older streets of Lakewood and the pattern repeats block after block. Two houses built close together, one strip of pavement running between them, and two families who have worked out an arrangement over the years about who parks where and who shovels what.

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Those arrangements hold up fine until something changes. A house sells. A new neighbor puts up a basketball hoop or starts leaving a trailer on the pavement. The concrete cracks, one side wants it replaced, and the other side does not want to spend the money. That is usually the point at which somebody pulls out the deed for the first time in twenty years and discovers it says something different from what everyone assumed.

A shared driveway in Ohio is rarely joint ownership. In most cases, one neighbor owns the ground and the other holds an easement, which is a legal right to use land that belongs to someone else for a stated purpose. The difference matters. Owning something and having the right to cross it produce very different answers when the two sides disagree.

Most driveway easements are express, meaning somebody wrote them down. Under Section 5301.01 of the Revised Code, an instrument conveying an interest in real property has to be signed and the signature acknowledged before a notary public or one of the other officials the statute lists, who then certifies it. Section 5301.25 handles the next step. Instruments conveying or encumbering land are recorded with the county recorder where the property sits, and until that happens they are treated as fraudulent against a later buyer who purchased without knowing about them.

That recording requirement is where informal arrangements fall apart.

"Two neighbors shake hands, maybe they write something on a piece of paper, and for fifteen years it works," said Hunter G. Cavell, a Cleveland attorney who handles real estate litigation at Cavell Law, LLC. "Then one of them sells. The buyer had no idea the agreement existed, because nothing was ever recorded, and the buyer is not bound by a handshake they were never part of. Now the other neighbor has a problem they thought they solved in 2010."

An easement can also arise without anyone writing it down. A prescriptive easement in Ohio is built on the same twenty-one-year deadline that governs adverse possession, found in Section 2305.04. A person who uses someone else's land openly, continuously, and adversely for twenty-one years may acquire the right to keep using it. Permission defeats the claim. A neighbor who uses the driveway because the owner said it was fine is not using it adversely, no matter how many years go by.

Cavell said people tend to mix that up with taking the land outright.

"A prescriptive easement gets you the right to drive on it," he said. "It does not get you the driveway. You do not own it, you cannot sell it separately, and you cannot do whatever you want with it."

Scope is the second thing that surprises people. An easement granted for getting in and out of a garage is a right of passage. Ohio courts read those grants according to what the document actually says and the purpose it served, which means the right to drive across a strip of pavement is not automatically a right to park on it overnight, store a boat on it, keep a dumpster there during a remodel, or build anything on it. The owner of the land, for their part, cannot block the use that was granted.

Then there is the question that starts most of these disputes: who pays when the concrete fails.

Nothing in Ohio law automatically splits that bill down the middle. Where the parties have a written agreement, the agreement controls. Where they do not, Ohio courts have generally placed the cost of keeping an easement usable on the party who benefits from it rather than on the owner of the land underneath. Two neighbors who each hold rights in the same driveway usually end up sharing something, but the shares are a matter of proof and argument rather than a default rule, which is exactly why these cases turn expensive over a repair that might have cost a few thousand dollars.

The issue often surfaces at the worst possible moment. A title examiner flags the easement during a sale, a lender asks for a recorded maintenance agreement that nobody ever created, and a closing stalls while two neighbors who have not spoken in years try to agree on terms under deadline pressure.

Cavell's advice to owners on these streets is to handle it early and on paper. Pull the deed and the recorded plat and read what the easement actually grants, including its width and its stated purpose. If the arrangement exists only by handshake, put it in writing, have it signed and acknowledged properly, and record it so it binds whoever owns the houses next. Cover the specifics people argue about later, including repaving, snow removal, parking, repairs after damage, and what happens when either property sells. And address changes in use when they start rather than after a decade has gone by.

"Every one of these cases I see could have been a one-page recorded agreement," Cavell said. "Instead it is two neighbors in court over a driveway they both still have to use when it is over. That part never gets easier."

About Cavell Law, LLC

Cavell Law, LLC is an Ohio law firm handling real estate litigation and business disputes. Hunter G. Cavell has practiced in Ohio since 2013 and represents owners, buyers, and sellers in boundary and property disputes; easement and shared driveway matters; title and deed problems; and claims involving misrepresentation in real estate transactions, as well as business and partnership litigation for small- and middle-market companies. He also serves as outside general counsel to Ohio businesses and represents clients in courts throughout the state.

To learn more, visit cavelllaw.com.

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