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Old 01-01-2014, 12:36 PM
 
3 posts, read 5,523 times
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I sold land adjacent to my house to a developer who built and sold a house on it. Included in the plans filed and approved for the new house was a shared driveway with my house. However, the developer neglected to include an easement for the shared driveway in the deed of the house he built, and the owner (on advice of counsel) takes the position that she is not obligated to share the driveway. I and three lawyers consulted believe that the new owner is right, namely, that absent an easement in her deed she doesn't have to share her driveway. Even so, this leaves me in the position of having lost driveway access to my house as a result of an oversight by the developer, which in turn leaves me in the position of having to sue the developer for my loss. My question is how to determine the amount of my loss for the purposes of suing for fair compensation.

There strike me as three different ways to determine this amount, although none is clear cut:

1. The Developer's Excess Profit: Presumably the developer was able to sell the house he built for a higher price by omitting the easement for the shared driveway from the deed, and presumably there is some percentage reduction in home values that appraisers use to estimate the reduced value of a home with a shared driveway. Does anyone know this percentage? If I knew it, I could estimate the value of my loss of driveway access by the excess profit the developer made by omitting the easement from the deed. I might add that shared driveways exist in my neighborhood, but are rare.

2. The Diminished Value of My House: Again, there is probably some rule of thumb that appraisers use to estimate the value of a house without off-street parking. Does anyone know what this percentage is? If it helps, I can add that on-street parking on my street really isn't that bad, since it's a side street, parking is free, and lots of people park on the street. On the other hand, every other house has off-street parking, and while I don't have a garage, there is a space toward the rear of my house where a garage (actually a carriage house) used to be located, and a prospective buyer could construct a new garage there if he or she only had driveway access.

3. The Cost of Constructing a New Driveway: Whereas this would seem the most logical way to determine the amount of my loss for losing driveway access, it's neither very practical nor accurate in my case. When I sold the lot, it was determined by all involved (the planning commission etc.) that constructing a new driveway on my remaining lot is not a good idea, since that would involve removing a large tree (protected by a tree ordinance) and otherwise altering topography in unappealing ways. Thus, even if a new driveway could be constructed on my lot, it would also detract from my property value by diminishing curb appeal and reducing green space. I might add that my house is in a leafy historic district where a driveway that cuts awkwardly through the front yard would definitely be perceived as an unattractive liability (and may not merit approval by the historic preservation commission).

Anyway, I'm just looking for a way to calculate a fair number to ask for in a lawsuit. I'm not looking to win the lottery at the developer's expense, but neither do I want to shortchange myself, since whenever I sell the house I'm sure that the loss of driveway access will lower the selling price. Any ideas for how to come up with a fair amount? Thanks!
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Old 01-01-2014, 01:49 PM
 
Location: Atlanta
7,574 posts, read 10,689,607 times
Reputation: 6512
Quote:
Originally Posted by DrivewayFree View Post
I sold land adjacent to my house to a developer who built and sold a house on it. Included in the plans filed and approved for the new house was a shared driveway with my house. However, the developer neglected to include an easement for the shared driveway in the deed of the house he built, and the owner (on advice of counsel) takes the position that she is not obligated to share the driveway. I and three lawyers consulted believe that the new owner is right, namely, that absent an easement in her deed she doesn't have to share her driveway. Even so, this leaves me in the position of having lost driveway access to my house as a result of an oversight by the developer, which in turn leaves me in the position of having to sue the developer for my loss. My question is how to determine the amount of my loss for the purposes of suing for fair compensation.

There strike me as three different ways to determine this amount, although none is clear cut:

1. The Developer's Excess Profit: Presumably the developer was able to sell the house he built for a higher price by omitting the easement for the shared driveway from the deed, and presumably there is some percentage reduction in home values that appraisers use to estimate the reduced value of a home with a shared driveway. Does anyone know this percentage? If I knew it, I could estimate the value of my loss of driveway access by the excess profit the developer made by omitting the easement from the deed. I might add that shared driveways exist in my neighborhood, but are rare.

2. The Diminished Value of My House: Again, there is probably some rule of thumb that appraisers use to estimate the value of a house without off-street parking. Does anyone know what this percentage is? If it helps, I can add that on-street parking on my street really isn't that bad, since it's a side street, parking is free, and lots of people park on the street. On the other hand, every other house has off-street parking, and while I don't have a garage, there is a space toward the rear of my house where a garage (actually a carriage house) used to be located, and a prospective buyer could construct a new garage there if he or she only had driveway access.

3. The Cost of Constructing a New Driveway: Whereas this would seem the most logical way to determine the amount of my loss for losing driveway access, it's neither very practical nor accurate in my case. When I sold the lot, it was determined by all involved (the planning commission etc.) that constructing a new driveway on my remaining lot is not a good idea, since that would involve removing a large tree (protected by a tree ordinance) and otherwise altering topography in unappealing ways. Thus, even if a new driveway could be constructed on my lot, it would also detract from my property value by diminishing curb appeal and reducing green space. I might add that my house is in a leafy historic district where a driveway that cuts awkwardly through the front yard would definitely be perceived as an unattractive liability (and may not merit approval by the historic preservation commission).

Anyway, I'm just looking for a way to calculate a fair number to ask for in a lawsuit. I'm not looking to win the lottery at the developer's expense, but neither do I want to shortchange myself, since whenever I sell the house I'm sure that the loss of driveway access will lower the selling price. Any ideas for how to come up with a fair amount? Thanks!
All of the above.

Don't just stick with 2 or 3.

This is a situation where the developer profited off your loss (whether by design or their careless mistake)

You can get the money for a new driveway, but you still lose usable space of the land it sits on and as you said it might follow an awkward path. It will effect the value of your property.

It might be worth checking with your local city council or county commissioner (if in an unincorporated place) to see if local ordinances already protect you somehow. Many shared driveways are mandated to limit the number of curb cuts onto a roadway.
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