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Roger
Roger, Attorney
Category: Legal
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Purchased single family dwelling on a flag lot with ...

Customer Question

Purchased single family dwelling on a flag lot with detached garage. Access to the garage travels over neighbors driveway. Dwellings were built at the same time in 1948 and use of this driveway has existed since then. Added onto existing garage and during the permitting was informed that there is only a eleven foot access on one side of driveway and only three feet across the front of garage.   Have asked neighbor for a right of way but turned down. Do I have any avenue of recourse to correct this problem?
Submitted: 8 years ago.
Category: Legal
Expert:  Roger replied 8 years ago.

It is most likely that you (or your predecessors in title) have created an easement by prescription. The case of EDITH T. TANAKA v. SPENCER SUETOSHI MITSUNAGA, KIMIYO MITSUNAGA AND YACHIYO MITSUNAGA, 43 Haw. 119, (Hi., 1959) defines this kind of easement:

An easement by prescription is created by a use of the claimed easement area adverse to the owner of the land for the period of prescription. In this jurisdiction the prescriptive period is 10 years. Generally, the adverse character of the use necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession. It must be continuous, open, and notorious. A person who claims an easement in adjoining land by prescription, as appurtenant to his land, need not show continued use by himself for the prescriptive period but may tack the use by his predecessors in title.

You may also have an easement by necessity. This is an easement that requires proof of unity of title between the dominant and servient estates, followed by a severance thereof. In general terms, you have to prove that you and your neighbor's property were once one tract and they were severed, thereby landlocking your property. This is a less likely easement based on the facts provided. But, it is another possibility. See AUGUST K. DUVAUCHELLE v. KAKANI, 2001 Haw. App. LEXIS 139 (2001).

I suggest that you have a local attorney take a look at the real property registry to define your exact property lines and whether any easements are on file. If not, the next step would be to file suit to determine whether you have an easement.

Good luck and feel free to ask any follow-ups.

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Expert:  Roger replied 8 years ago.

THANKS!!! I wish I were in your town!!! Like millions, I honeymooned there (Oahu and Maui) in 2002 vowed to come back in at least 5 years. However, 2 babies (and another on the way) have put out those plans. Even though coming back has been put on hold, the reason for the delay is well worth it!!

I wish you the best.

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