The driveway is not in the easement

In these situations where long ingress and egress easements are required, I like to write them in a way that allows them to shift because of, natural migration, erosion or land use. They still have an unrestricted right to cross, but where that crossing is located can be shifted with just cause. Yes, the reasons for moving must be spelled out and agreed to by both parties.
jud

Exactly what you did...

You Can Lead A Horse.....

Put the explanation in writing, refer to your survey (preferably attach it to a copy).

Present what you think is (are) the solution(s), and send it certified mail.

The rest is up to him.

Radar,

Certainly you depicted the encroachment (graphically) on your survey plat. If your client chooses to ignore this issue then it is in no way your responsibility to inform the client otherwise.

Hell, maybe the neighbors actually are friends, something rare these days. 🙁

Have a great weekend!

> I explained to him some of the implications and what he should do to resolve issue and he said, OK, I'll get back to you. But I doubt he will ever do anything.

That needed to be done face to face (office or onsite). Was it? I would strive for avoiding this conversation via telephone or worse, snail mail. Write up the "minutes" of your client meeting, file it & forget about it - you've done due diligence on your part, the rest is up to him.

Like most have mentioned, if you have already depicted the drive on you survey and disclosed to your client, i feel you have done your job.
Its the lender and or title co., if they are involved, that might have an issue.(and of course the neighbor):-)

How long has the ingress and egress been going on? May not be a big deal, but I would have done as you did.

I am surprised at some of the answers here.....many clients don't know how to read a survey, and certainly many don't realize the full legal implications of adverse possession, proscription, etc., etc. (As one can read here almost every day, many posters here don't either.....).

What some above are suggesting is that now the landowner is on his own. I see two levels of responsibility here.

On the first level, you do indeed seem to have done your due diligence as a land surveyor. You did the survey, found the property lines and easement information, and drawn a survey to show your conclusions. In a legal sense, that's really pretty much all you have to do.

But, is your duty to your client done? Well, maybe yes, and maybe no. You have an opportunity to save this guy a potential bit of trouble down the line. By looking at your survey, he may know that this easement encroachment (or whatever you called it) exists, but he may not get the full implication of it. Does your survey include a narrative portion about the implications of this condition? I doubt it.

But here, you the surveyor, have a chance to get him to sit up and take notice. What is the down side? I can't see any. But the upside might be some more work for you to do....maybe a boundary agreement, or some additional survey work or stakeout. Perhaps even a new complete survey for the neighbor.

Instead of putting a memo in the file, why not put it in letter form (as I stated above) and send it to him? This way, it's an additional reminder that he needs to take care of an issue that could return to bite him later on.

Edit after Radar's post below: Well, if you know they don't want to spend the money, then you pretty much seem to have done all you can do..

The driveway has always been where it is.

My clients house was built first and the neighbor was not too long after. They laid asphalt when the neighbors house was built but there was a gravel/dirt driveway, accessing the neighbors lot, before that.

They get along and don't seem to care that the driveway is not where it's supposed to be. I did talk to both of them, face to face, but I doubt either wants to spend the money to fix it.

Douglas

Radar

Then why don't they just change the location of the easement to fit the existing driveway and clear it up for the next two folks in the rodeo?

Radar

I would see myself reacting the same way. Why would I spend the money to clear up a problem that actually isn't a problem? It would really be up to the neighbor to straighten things out as he is the one that may have a problem if he sells.

> Does your survey include a narrative portion about the implications of this condition? I doubt it.

I can't say I've ever seen a narrative, on a survey, that described the implications of an existing condition. But then, I've never seen a survey from New York City;-)
It seems to me that, that would be a legal opinion. Do surveyors express legal opinions on documents where you live?

I do want to thank everyone that replied, all of your input was very helpful.

I am going to send both of them a letter explaining the implications in writing and attach a contract with a scope and budget for resolving their issue.

Thanks again for all of your help.
Douglas

Perry

> It would really be up to the neighbor to straighten things out as he is the one that may have a problem if he sells.

It really isn't a problem until either one tries to sell. Then, the new buyer should want it resolved before he takes possession.

A Narrative

We don't do them here either....I merely assumed you weren't going to spell out a whole legal treatise about easement, AP, etc., etc., on the plat.

Hence the reason for a letter, merely advising him about implications and options.

Again, if you don't think anyone's going to pay for the effort, then nothing lost.

> I can't say I've ever seen a narrative, on a survey, that described the implications of an existing condition.

I think that your survey map should show the facts. The location of the easement and the location of the as-travelled driveway. That will be public record when recorded. Your opinion about the implications of the situation should be in a separate letter to your client. Make sure you keep a copy in your file.

Perry

Might add refinancing to the list, it is a cloud on the title. Might be resolved with a recorded agreement letting it remain where it is for a defined length of time. Basically a license to use. Doing it that way would clear the title and block any adverse claims because the owner was controlling the use of his land.
jud

Maybe The Easement Does Not Encompass The Driveway

Which came first?

Paul in PA

Maybe The Easement Does Not Encompass The Driveway

The driveway was always there, as far as I know, from what my client told me. The plat was designed, assuming a new driveway would be built.

> I am surprised at some of the answers here.....many clients don't know how to read a survey, and certainly many don't realize the full legal implications of adverse possession, proscription, etc., etc. (As one can read here almost every day, many posters here don't either.....).

This is why I advocated a face to face where the specifics could be spelled out & shown in detail, instead of just 'mailing it in' as you implied from initial post (below).

> Put the explanation in writing, refer to your survey (preferably attach it to a copy). Present what you think is (are) the solution(s), and send it certified mail. The rest is up to him.