In the last blog we looked at a property that abutted common ground along the rear property lines. On the back left side of the property, we had discussed the required removal of all the items that the homeowner had placed in the common ground area and how that had affected the sale of the property. In this blog we’re going to discuss the driveway that extends across the common ground.
According to Missouri State statute it is illegal for a property to be landlocked, meaning that it does not have at least one point of access to the property. In today’s land of suburbs, lots are granted access through the various streets created by the subdivision. Almost all lots have interior access to the front of the property.
In our example, the homeowner has created a secondary point of access directly to the main thoroughfare of the subdivision. The biggest concern regarding the creation of the secondary access point is that the driveway extends across the common ground which is owned by the subdivision to access that main thoroughfare.
It is typically acknowledged that structures owned by private individuals should be built and located within the property that they legally own. In this instance the driveway extends across the common ground onto land that they do not own. This has now become a legal issue regarding the ability of that driveway to be located on the common ground.
The easiest solution is to not build on the common ground. The second easiest solution is to get permission from the subdivision trustees to build in the common ground. This homeowner approached the subdivision and asked for permission to build their driveway across the common ground. They were granted permission. However, no legal document providing an easement was created at that time. When the homeowner wanted to sell the property, the title company and their underwriter had concern regarding the driveway. The existing homeowner went to the trustees and obtained a letter stating that they had permission. Even though this document had not been recorded, it still provided legal permission for the driveway to exist across the common ground.
Surveyors work very closely with title companies to identify and locate easements. The title company lists the easements in the title commitment that is used to purchase land And the surveyor confirms the locations of those easements. So that future owners of this property continue to have permission for the driveway, the title company created a document and recorded it for future reference.
However, it should be noted in this example that if a boundary survey had not been performed, the existence of the driveway would not have been addressed, and the ability to obtain a letter from the subdivision trustees may have gotten significantly more difficult over time.
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