The Seller Said It Was A Shared Driveway

By David Hamerslough and Victoria B. Naidorf

December 10th, 2025

This year, we have seen multiple claims involving access-to-property issues. What these claims have in common is that there is some shared access to the property being sold (e.g., a driveway or road), there is no written agreement regarding that access, and there is either no information provided by the seller or the information is inconclusive. Here is an interesting fact pattern from one such recent claim.

The seller’s disclosures stated that there was a shared driveway in response to questions regarding use of another person’s property. A visual inspection confirmed that access from the public road to the property was over a neighbor’s property. The seller did not have a written agreement regarding the use of the driveway, and the preliminary report indicated that there was no recorded easement or other document regarding the use of the driveway. The only inquiry made by the seller’s agent was to confirm with the title company that there was no recorded agreement on this issue. A conversation occurred between the seller’s and buyer’s agents. Unfortunately, neither agent confirmed that conversation in writing.

Following close of escrow, the buyer started to use the property for short-term rentals. The number and frequency of vehicles crossing the shared driveway increased, as did the noise level at the property in question. Once the dispute arose, it became clear that the seller’s agent and the buyer’s agent had different recollections of their conversation regarding the driveway. The seller’s agent claimed that the only information that had been conveyed was that there was no recorded easement according to the title company. The buyer’s agent claimed that the seller’s agent had stated that the buyer had the legal right to use the shared driveway.

During the litigation, the buyer produced an email from their agent stating that their agent had talked to the title company and had been told prior to close of escrow that the shared driveway was a public road.

The foregoing are not all of the facts and issues involved in this litigation, but we have highlighted the primary ones. The resolution of this claim involved creating physical access from the public road to the buyer’s property at a significant expense due to the topography. Attorneys’ fees and costs were also part of the claim and its resolution.

This article will focus on the issues raised by the fact pattern described above and provide some recommendations for how this claim might have been avoided. The recommendations are likely to apply to many claims involving shared access.

The fact pattern described above resulted in the following claims being made. The buyer alleged that the seller failed to make a full and complete disclosure of material facts relating to access. The buyer also claimed that one or both brokers/agents failed to make an adequate inquiry of the seller or others to learn the material facts regarding access. These material facts included the historical use and maintenance of the shared driveway, whether there were any oral agreements in the absence of a written agreement, what written communications – emails, text messages, etc. – existed with respect to any of these subject matters, and if there was no express agreement (written or oral) authorizing access, was access based upon implied permission and/or neighborly accommodation of the adjoining property owner?

Another part of the buyer’s claim was that the brokers/agents were not documenting their communications with not only each other but also with third parties, such as the title company, and were not qualifying the delivery of any information they transmitted by advising their client that the broker/agent did not know if the information being transmitted was accurate, that the broker/agent had not independently verified that information and would not do so, and that the client should independently verify that information or retain qualified professionals to do so.

Based on these types of allegations, the following practices may help sellers and brokers/agents avoid claims of this nature:

• What information has the seller provided in response to those questions in the disclosure documents regarding easements, use of the subject property or neighboring property, or features of the property shared with others? The length of time that the seller has owned the property could be significant in terms of the knowledge they have on this subject. Do they have any historical documents (including disclosures) that may address the issue?
• In the case of a shared driveway or road, how long had the seller been sharing the driveway or road, on what basis did that use take place, had the seller ever maintained any portion of the driveway or road, had the adjoining property owner maintained it, who paid for maintenance, were there any written agreements between the two property owners regarding the shared use or maintenance, were there any disputes between the owners regarding that use or maintenance, and were there any communications or writings regarding any of these subjects in the absence of any written agreement?
• Are the responses provided by the seller consistent or inconsistent with what you otherwise know or have seen? For example, if your visual inspection of the property or other visits confirm that the driveway or roadway is being used by other parties, what inquiry can be made to determine the basis upon which that use is taking place?
• If the seller provides no information on these subjects, what inquiry could occur to learn this information or prompt the seller to recall any details that they may have overlooked or forgotten? For example, how long has the seller used the shared driveway or road, with or without the knowledge of the adjoining property owner, why did they think they had the right to use the shared driveway or road, what communications (written or oral) have they had with the adjoining property owner on this subject or regarding maintenance, do they have any historical documents regarding access, etc.?
• Don’t assume that the adjoining property owner has the same understanding as the seller regarding these issues. How long has the adjoining property owner owned their property? Does that owner agree on the right to use their property? Do they contend that any such right is only with their permission and consent or that of their predecessor? Do they have any communications regarding this issue or maintenance?
• Don’t assume that a prescriptive easement or some other theory to support continued use exists based only on the seller’s statements or understanding regarding the historical use. Permission or consent (express or implied) will defeat a claim for a prescriptive easement. Unfortunately, most claims involving prescriptive easements boil down to whether there was implied permission by one neighbor to let the other neighbor use the property. A number of facts may impact that determination by a court, including the historical relationship between the parties, the physical relationship between the two properties, and the communications the parties have had on use and maintenance. If the use and/or maintenance has existed prior to the current owners of the two properties, the same questions will apply with respect to each of their predecessors.
• On the other hand, if you are representing the seller of a property that is burdened with the shared use/driveway, don’t assume that that use will cease in the future or that it can be stopped. If the historical use establishes that a prescriptive right exists to continue to use a road or driveway, the fact that that right has not been perfected in court does not defeat the claim. Even if a prescriptive easement does not exist, recognize that there is an alternative legal theory that may apply, that of equitable easement.
• Does the Preliminary Report indicate that there is insured access to the property? If so, what is the basis for that insured access? Is it the same access that is being utilized by the property owners? If not, then the basis for the access being utilized needs to be determined. In the fact pattern described above, the buyer’s agent apparently misunderstood the response that he received from the title company regarding insured access via the shared driveway. The buyer’s agent confused insured access with physical access. Insured access means that the property abuts a public road but does not necessarily mean that there is physical access from that public road to the property. In that fact pattern, both properties abutted a public road, but physical access to one of the properties only occurred because of the use of the shared driveway.
• Documenting any inquiry that is made and the communications that you have with other individuals can eliminate disputes over what information you were provided, by whom, and when, and what you then transmitted to another individual and can go a long way toward preventing claims of this nature. It is also important to remember that when you act as a conduit of information by passing on what you learn or receive from others, you need to qualify the transmission by identifying the source of the information, whether you have independently verified that information and whether you would do so, and advising the recipient of the information (if you are in a fiduciary relationship with them) to verify that information themselves or with the assistance of qualified professionals and otherwise meeting any fiduciary obligations.
• Buyers should consult with a qualified California real estate attorney to investigate title and potential neighbor issues before removing contingencies.
• There is also often a practical aspect to cases involving access issues. Unless there is a written agreement (such as a purchase agreement or easement agreement) containing an attorneys’ fees clause, there will be no basis to recover attorneys’ fees unless there is a statutory basis for recovery. There are no specific statutes that provide for the recovery of attorneys’ fees for this type of claim.

Claims involving access typically involve significant time and expense to resolve. This is especially true with respect to resolving such claims when access no longer exists or will cost a significant sum to restore or create. Following the above recommendations may assist sellers and brokers/agents in avoiding these consequences.