The Driveway That Outgrew Its Easement
In Ridgefield, Connecticut, Lot 7 contains 2.0 acres and is served by a 20-ft-wide right-of-way granted in a 1968 deed over the northerly 20 ft of Lot 8 "for ingress and egress to Lot 7." In 1974 the then owners of Lot 7 graded and paved a 14-ft-wide driveway that leaves the deeded strip and crosses Lot 8 diagonally, at points up to 18 ft outside it. No written easement or boundary agreement was ever recorded. The present Lot 7 owner has a signed contract to sell; the buyer's lender requires a survey, and the title company wants all access rights shown. The Lot 8 owner has told the seller he considers the driveway a trespass and may install a gate. Neighbors state the driveway has been used openly and continuously by Lot 7 owners, tenants, and visitors since 1974. The seller asks you to "show the driveway as the easement" so the closing is not delayed.
1. Distinguish the express easement from the claimed prescriptive right, and state what a surveyor can and cannot determine.
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The 1968 deed grants an express easement by grant: a 20-ft strip over the northerly 20 ft of Lot 8. That is the only access right of record. The paved driveway outside the strip is not within the express easement.
Use outside the strip for roughly 50 years could support a prescriptive easement in Connecticut if the use was continuous, open, notorious, and adverse, meaning without permission, for at least 15 years. The reported facts-open, continuous use by owners, tenants, and visitors since 1974-are consistent with such a claim. But a surveyor cannot adjudicate title. The surveyor can locate the deeded strip and the physical driveway and report the discrepancy. Whether a prescriptive right exists is a question for counsel and, if contested, the court.
A prescriptive easement is also not a surveyed boundary. It is a legal interest. The map should therefore distinguish the recorded easement from the claimed right rather than blend them into one line labeled "easement."
2. What should appear on the map, and how should each item be labeled?
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The map should show, first, the 20-ft deeded right-of-way by bearings and distances from the 1968 deed, labeled "20-ft right-of-way (1968 deed, Book ___, Page ___)." Second, show the actual 14-ft driveway as a separate line, labeled "existing driveway - no recorded easement; claim of prescriptive easement asserted/not established." Third, show the offsets where the driveway leaves the deeded strip, up to 18 ft. Fourth, add a note that the map does not constitute a title opinion and that the driveway's status is subject to legal determination. Show a gate only if one physically exists; do not speculate.
The surveyor should not simply draw the driveway and label it "easement," because that implies a recorded right that does not exist. Nor should the surveyor ignore the driveway; the lender and buyer need to know that access does not follow the deeded strip. A title company can then decide whether to except the discrepancy or require a written easement.
3. The seller demands that the driveway itself be labeled as the easement. How do you respond?
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Decline the request as stated. Show the deeded easement and the actual driveway with qualifications. Tell the seller in writing that the requested depiction would misrepresent the record and could constitute a deceptive practice.
Offer alternatives: the Lot 8 owner grants a written easement for the actual driveway, recorded before closing, after which the map can show the new easement; the seller obtains a title policy exception and the buyer accepts the risk; or the parties enter a written boundary/easement agreement. If the seller wants the driveway treated as the easement without documentation, the surveyor should not sign the map.
If the closing deadline cannot be met, deliver an existing-conditions map clearly labeled as not a boundary or easement determination, or withdraw. Document all communications. The surveyor's obligation is to report what the evidence shows, not to manufacture record rights to satisfy a closing schedule.