The Driveway, the Shed, and Marketable Title
The Whitfields are buying a 1.2-acre parcel in Sussex County. The seller says the gravel driveway crossing the neighbor’s land “has been used by my family for 40 years,” but no easement appears in the deed. A survey shows the Whitfields’ detached shed sits 4 feet inside the 10-foot side setback and 2 feet onto the neighbor’s parcel. The neighbor has never objected. The contract says the seller will convey “marketable title by general warranty deed,” and the buyer has a 10-day inspection contingency. The seller also mentions that a prior owner “had an understanding” with the neighbor about the driveway, but there is nothing in writing.
1. Can the Whitfields rely on 40 years of driveway use? Analyze the possible theories and what must be verified.
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Not without documentation. Two theories are possible, but each has a gap:
- Prescriptive easement. The use must be open, notorious, adverse, continuous, and for the statutory period. Forty years is long enough to matter, but the seller’s statement about an “understanding” suggests the use may have been permissive, which defeats prescription. The buyers need affidavits, old surveys, tax records, maintenance records, and evidence that the neighbor never granted permission.
- Easement by necessity. This usually requires unity of ownership followed by a landlocked or strictly necessary access need. A second driveway or practical inconvenience defeats “strict necessity.” Nothing in the facts shows common ownership or true necessity.
The buyers should not close on the oral story. They should require a recorded written easement or a title company commitment that affirmatively insures access.
2. How should the shed encroachment and setback violation affect the transaction?
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The shed creates two separate problems:
- Encroachment: part of the shed is on the neighbor’s parcel. The neighbor’s past silence does not transfer ownership, and the buyer could later face a demand to remove it. This is a title/possession issue, not just a cosmetic one.
- Zoning setback violation: 4 feet inside a 10-foot setback is a land-use violation. The neighbor’s non-objection does not cure a municipal code violation.
The buyer’s inspection contingency should be used to obtain a survey, a zoning/permitting check, and a cost estimate to remove or relocate the shed. Possible cures include removing the shed, obtaining a variance, or obtaining a written easement/lease from the neighbor. A lender may also object to an encroachment. The seller should be asked to cure before closing because “marketable title” is doubtful while the encroachment and violation remain.
3. What does “marketable title” require here, and what are the buyer’s options if the seller cannot cure?
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Marketable title means title that is free from reasonable doubt and from encumbrances that a reasonable buyer would object to. Here, the unrecorded driveway use and the shed encroachment could make title unmarketable, even with a general warranty deed, because the deed’s covenants are promises about title-they do not automatically remove an existing encumbrance or zoning violation.
If the seller cannot cure, the buyers can:
- Demand a written easement, boundary line agreement, or removal/relocation of the shed.
- Extend the contingency period to pursue a variance or quiet title action.
- Terminate under the title/inspection provisions and recover the deposit if the seller cannot convey marketable title.
- Accept title insurance endorsements only after confirming what the policy actually insures; title insurance generally does not cure zoning violations.