Missouri Driveway Easement Law: A Complete Overview

What Is a Driveway Easement?

Driveway easements are a type of prescriptive easement, which refers to the legal right to use another person’s property to reach your property. Given that Missouri has a "doctrine of adverse possession," which clearly defines the requirements for acquiring ownership of a piece of land from an absentee landowner, easements are not often confused with adverse possession, but can be. Some property owners may wrongly believe that they own a piece of land, but have only acquired an easement. Missouri has specific requirements for both easements and adverse possession, and durability as well as flexibility are built into the statutes.
Under Missouri law, easements are generally considered easements at all times and do not need to be restated or reestablished if they are legally created. Missouri defines an easement as: "an interest in land or an estate less than freehold." A driveway easement is simply a defined area on or under a parcel of land for the purpose of coming and going without monetary exchange; essentially the right to pass over property .
The Missouri Supreme Court has defined an easement as, "an interest or privilege passed by grant of permission to the owner of the dominant estate to be exercised over the land of the owner of the servient estate." Missouri statutes lay out requirements for creating easements, including prescriptive easements, by statute.
In order for a prescriptive easement in Missouri to be uninterrupted, oral or written consent from the landowner being used must not have been given. Ownership of an easement can be transferred with conveyance of property and the use of the easement continues, although Missouri law requires the existence of a written easement if it is to be sold or purchased. For driving purposes, however, a verbal agreement is often sufficient, with an unwritten agreement regarding use of a driveway easement being upheld if present. Even an implied agreement can be upheld in some circumstances.

Driveway Easements in Missouri

In Missouri, the law recognizes several types of easements. Driveway easements fall under this category and the most commonly recognized easement is the easement appurtenant. An easement appurtenant generally requires the existence of two pieces of property owned by two different landowners. One property grants the right to the other for its use. The land with the right to use the easement is the dominant estate, and the other land is the servient estate. The dominant estate is the property that uses the driveway. The servient estate is the property that provides access to the driveway. In the case of a Missouri driveway easement, the dominant estate is usually the benefitted property and the servient is the burdened property.
The second commonly recognized easement is the easement in gross. An easement in gross does not require two properties owned by separate owners. It exists due to the action of the owner of the parcel. There are several ways to create an easement in gross. A recent trend is for developers to create a common drive that serves as a common driveway easement. The owners with access have a right to the common driveway. A homeowner association may have the right to maintain common drives with the power to impose maintenance fees.
Both types of easements under Missouri law are subject to the same rules in terms of their creation. To be enforceable under Missouri law, an easement must be: 1) created by a deed; 2) created by implication or necessity; 3) created by express reservation in a deed; 4) created through prescription (use of the property without the consent of the owner); or 5) dedication by the owner of the property.

Requirements for Driveway Easements in Missouri

Aside from acquiring a prescriptive easement through continuous use, in Missouri, a property Owner can establish a driveway easement by legally creating one. There are several methods to accomplish the creation of a driveway easement. One method is to obtain an easement through an express grant from the property owner.
An easement can also be reserved pursuant to Mo. Rev. Stat. § 516.100. To reserve an easement on a deed, you would typically include language such as: The [party/purchaser] hereby reserves an easement across the [property or address] for the purpose of [describe purpose of easement: ingress, egress, etc.], specifically for the driveways and entrances to and from said [property or address], and further reservations and specified rights as depicted on Exhibit "A" and Exhibit "B" attached hereto. Another method to acquire an easement would be through easement by implication. An example of an easement by implication would be the creation of an easement in the middle of a new street when the grantors of the easement intended to lay down asphalt, if the grantor is disturbed, the easement owner could remove the asphalt.
Depending on how the easement is created, it may or may not need to be recorded with the county recorder’s office. For instance, easements by express grant are usually required to be recorded, while easements by implication do not require recording, but may be recorded voluntarily. An easement by necessity must be recorded.
A Driveway easement which is not recorded may lead to title issues down the road, especially if the buyer of the property does not have notice of the driveway easement. An example of this would be if an adjacent property owner has planted apple trees on the shared driveway between the owners.
If the property owner who planted the trees has given notice to the other party of the trees (for example an email about the trees), then the driveway owner should have a cause of action against the party who planted the trees. If the driveway owner had no notice, then the new owner would have an issue.
Since driveway easements are typically not recorded due to the high cost of showing exact property lines, a homeowner should be careful to include a description of the propertyline or the start and end of the driveway easement. Typically, an easement should be described in a way that is very specific.
By way of example, a legal description of an easement could state "from corner point #1 to corner point #4, being points 1 through 4 of the attached survey, for foot travel only, of the Treadmill Track referred to herein to be installed in the ground at the locations and to the international specifications and certification of the International Society of Arboriculture, American Society of Consulting Arborists Industry Standards of Care in Arboriculture and the American National Standard Institute (ANSI) D 1971-1988 to a depth of six (6) inches below ground surface and six (6) inches above ground surface."
This is not the most effective way to write a driveway easement, but it does highlight the importance of being specific and exact when writing a driveway easement so that it does not create title issues in the future.

Driveway Easement Disputes and Outcomes

Common causes of conflict are the maintenance and repair responsibilities, the use of the easement by the dominant estate, or encroachments by the owners of the servient estate on the easement. In most cases, post-construction conflict results from a failure to properly maintain the easement. For example, if the easement is an unimproved strip of land it may become impassible over time due to vegetation overgrowth, drainage issues, or erosion. The remedy is typically just a matter of money. The parties tend to agree that the owner of the dominant estate should bear the cost to remedy the problems, but it is often a challenge to reach an agreement on how much it costs to fix the problem. For example, if the owner of the dominant estate suggests a culvert should be installed to fix drainage issues, the owner of the servient estate may object that opening up the easement to install the culvert will drive up his costs.
Over time, the owner of the dominant estate may also believe the scope of the easement has been expanded due to permissive use granted by the owner of the servient estate for a specific purpose . For instance, if a home has been built on the dominant estate and the parties have agreed to share a gate holding access to the easement, the now-servient owner may feel that he should now be permitted to use the greater driveway easement so long as he stays off the smaller driveway easement. Whatever the case, it is not uncommon for the parties to disagree about what uses are within the scope of the original easement grant.
Encroachments on the easement by the owner of the servient estate are perhaps the easiest breaches to identify. Determining whether an encroachment on the dominant estate is a trespass often leads to more contentious resolutions. In general, a court will not permit a servient estate owner to encroach upon the dominant estate, absent an agreement between the parties allowing it. This is true even if the encroachment is insignificant, e.g. a slight protrusion of a tree root into the dominat estate.

Considerations for Homeowners

Driveway easement laws in Missouri give the owner of the dominant estate – the one that benefits from the easement – the right to pass over the property of the servient estate – the owner of a property burdened by an easement. Easement holders are typically responsible for maintenance and repair of the easement, so long as such upkeep does not unreasonably burden or damage the servient estate. If obligations for maintenance and upkeep are not met or the easement is used in a manner inconsistent with its purpose and intent, the servient estate may sue to compel performance by the dominant estate or to recover the cost of maintenance and upkeep. The aggrieved party may also be able to enjoin the offending action until compliance is satisfied.
The burden of the easement can create problems for the servient estate. The easement holder may use the easement freely as long as such use does not burden the servient estate. Should the dominant estate owner use the easement excessively or in a damaging or injurious manner, however, the servient estate owner may have a cause of action for nuisance (i.e., unreasonable interference) against the dominant estate owner.

Amending or Terminating an Easement

Due to the unique nature of easements, a valid driveway easement may be amended or terminated.
Amending a Driveway Easement
An amendment to an easement changes all or part of an existing easement. Having a written easement is helpful if a driveway has been recorded in the deed records describing an existing easement. Without the written easement, it may be difficult to prove the existence of the easement. It is common for real estate to be sold in parcels. Sellers often grant easements by general reference to easements for previous owners. A new easement may be created to replace a previous easement species. The new easement may describe the easement by number of feet and location, a new route on the property. Typically, an easement is created by a written agreement signed by both parties. A typical subject matter for an easement amendment is the manner of control of the easement . This has been held to be a permissible subject for an amendment to an easement; however, the easement must be created by statute and not by an instrument. The alteration of the easement, such as widening the right of way for telephone and electric lines and pipe lines may also be an acceptable reason for the amendment of a driveway easement.
Terminating a Driveway Easement
If an easement is created by express grant or reservation, it is subject to termination. The following are acceptable reasons for terminating the easement: Termination of an easement terminates the rights of the dominant estate to use the property or to exclude the owner of the servient estate from the property. It is common for real estate property to be sold in parcels. There may be time periods specified in the original easement provisions that allow the parties to terminate an easement. If an easement has been created by prescription, the servient estate owner may recover the possession by ejectment to terminate the easement.