October 13, 2021
The value of various features of subdivision development can be evaluated by whether they makes people happy or leads to acrimony. The value of property is inextricably intertwined with its use potential. Generally, where there are few disputes among the owners, this may indicate that the developer did something right in creating the community.
In this post, I would like to focus on a particular feature found in many communities, the pipestem driveway. There are problems with pipestems. Shared driveways have been around for hundreds of years.
What we now know as the “pipestem” arose more recently in response to local ordinances. Generally, developers like to put in as many homes as they can. More sales, more money. The design team will look at a tract and figure out how to best arrange lots on it. This poses challenges, such as grading, soils, existing structures, roads, natural obstacles such as creeks, and so on. Each lot must have access to public streets.
For most lots, this is easy. One boundary of the lot is adjacent to a right of way, and the driveway from the house extends across the same lot to the right of way. However, there are ways that the developer can include homes in a subdivision that don’t have a full, proper yard facing the right of way. This is done by creating lots that lie behind lots that are next to the road. Such lots are accessible by a driveway that runs between or across two lots directly on the street.
This approach allows for more homes. Such a driveway is called a “pipe stem” because a long, thin portion of the lot (or just an easement running to the lot) connect the bulk of the lot to the right of way.
Unfortunately, there are many problems with pipestems. This feature can complicate the development or use of the lots that use the driveway or are encumbered by an easement that runs across the pipestem. Many pipestem driveways are not limited to a portion of the lot that extends narrowly to the neighborhood street. Usually, there is an easement that allows multiple pipe stem lots to share each other’s pipestems. Often such easements extend off of the lots and onto a portion of lots that have a “full” front yard boundary with the right of way.
To understand the problems with pipestems its important to be familiar with how easements work. An easement is an interest in land owned by another person, consisting of the right to use or control the land for a specific limited purpose. (Black’s Law Dictionary) Easements are commonly made in writing and recorded in the land records. Usually, pipestem easements are shown on the plat establishing the lot boundaries and roads in the subdivision. In Virginia, it’s not enough to simply show an easement on a plat and record it. There must be a separate document with granting language that indicates who gets to use the easement and other details. To fully understand the easement, one may have to review the subdivision plat, the deed of easement, and any restrictive covenants for the HOA. Because the “contract” regarding the use and maintenance of the pipestem easement are reflected across different land instruments, this can cause confusion or ambiguity that later result in problems with pipestems.
Problems with pipestems include legal disputes among neighbors (or HOAs) regarding uses, maintenance or erection of structures on the easements. Here are a few examples:
Encroachments into the Pipestem: With a pipestem, one homeowners’ backyard is adjacent to another’s driveway. The pipestem lot’s front yard usually faces the backyard of the house in front of it. Most people like to have privacy in their backyards, and add patios, play equipment, and decks to create outdoor living space. With a pipestem, the house in front has to add trees, shrubs, walls or fences to create privacy in the backyard and to screen play areas from someone else’s driveway. Fence contractors do not ordinarily do any research on their own to determine if what the customer wants would encroach onto an easement (or violate a county fence height ordinance). Many HOA architectural committees are unaware of the legal problems associated with pipestems and do not ask for the applicant to obtain a title report and new survey. Some architectural applications require the lot owner to initial something that says that they take responsibility for such issues. Such things add an additional expense, and are not necessary for the committee to evaluate most architectural applications. Because the majority of lots in the HOA don’t involve pipestems, boards and committees may consist of volunteers who don’t understand problems with pipestems. HOA handbooks focus more on the height, style, material or color of fences, and not easements. Landowners whose lots use pipestem driveways for access or have such easement running across a portion of their lots ought to obtain an up-to-date survey, where the surveyor has a copy of a recent title report containing copies of the subdivision plat and any other recorded easements. Having a good survey can remove the guesswork from questions related to new fences, planting of trees, or widening of driveways.
Who Has Rights to the Pipestem? A pipestem driveway easement may only be held by one lot that uses it, or there may be 2, 3, 4, or more lots that all share the same common driveway. In many subdivisions, each of the served lots may have rights to the easement, but it is treated as a limited common element of the HOA. The driveway may be used only by particular lots, but for management and repair purposes, the HOA controls it, and charges the cost to maintain to the owners who use it access their lots. If the covenants or easements are poorly drafted, this can result in ambiguity regarding who gets to make what kinds of decisions regarding the use and maintenance of the driveway. What if someone wants to plant trees or shrubs to beautify an unpaved portion of the driveway? Can the served lot owners widen the paved driveway to the edge of the easement to make it easier to navigate? Will the served lot owners have to plow snow or will the HOA? What happens if the repaving of the pipestem driveway changes the grading and flow of water, and someone downhill is flooded as a result? Some of the better-drafted HOA covenants include sections that provide some answers. Unfortunately, there is no “standard” way of designing a pipestem system. Finding the answer to a problem usually requires land records research, an updated survey and a HOA books and records request. A proper lot survey plat is often essential to solving a problem, as I discussed in an earlier post, “Role of Survey Plats in Resolving Property Disputes.”
Is there anything good about pipestems? To avoid disputes about maintenance, use, or encroachments onto pipestem driveways, everyone who is affected has to pay special attention to such issues to avoid causing or suffering a legal problem. It’s not enough for one person to act in a responsible fashion. With pipestems each party is often reliant on others to not do anything to encroach or interfere. While many neighbors are wonderful people who would never do anything to interfere with someone’s privacy or access, there are many people who simply do not understand easements. On the plus side, pipestem lots do have greater privacy from the road. Some pipestem lot owners like having a little area for their kids to play on scooters or bikes with their neighbors’ kids without being out in the street. Because the pipestem lot is set further back from the street, it may enjoy frontage along a public park or wooded common area that may make those owners feel like they have a larger backyard.
Why do people buy pipestem homes? The problems with pipestems are well known in real estate circles. In fact, some counties have adopted ordinances and policies to restrict the ability of developers to use pipestems. The government has an interest – an encroachment into a pipestem and the parking of vehicles can block emergency vehicles from driving up to the house. But policy changes don’t eliminate pipestems where they already exist. People buy these homes anyway. One reason is that a problem may not develop until years after the subdivision is built. Two neighbors can get along well, and then one moves. The new neighbor decides to relocate a fence, or finds fault with the other’s use impacting the driveway. Another reason is that the title work and survey are an overlooked aspect of the home buying process. Home buyers are given a list of exceptions to the title insurance, but no one adequately explains what they mean. The buyer may decide to purchase a survey before closing that merely locates the house on the lot, instead of a more detailed survey showing the boundaries and any encroachments. In Virginia, the purchaser will receive a resale disclosure packet for the lot they are buying. But those disclosures won’t show whether a neighbor has erected anything on their lot without proper HOA approval. Most buyers are more focused on things like the home inspection and financing. However, having good relations with one’s neighbors is one of the biggest reasons why people love living in their homes. If there is a problem with a neighbor, many people feel more inclined to move away. The pipestem is essential to the lot owners who rely on it for access purposes, but because it is a common driveway running across lots who don’t use it, effected owners are reliant on neighbors to not interfere with their rights. Otherwise, litigation may become necessary to resolve disputes.
The best ways to solve problems with pipestems is to avoid them ahead of time. Review the title report and survey before closing. If a neighbor is applying to the HOA or county to install something that impacts the easement or adjoining lot, carefully consider whether to submit a letter as an effected party. If the owner doesn’t have a survey, then its never too late to order one. If there is an ambiguity or issue with the easement itself, its possible for the neighbors who share rights to the pipestem, or are incumbered by it to amend the old easement or create a new one that clarifies certain things, so that later if one of them sells their lot to a jerk, everyone remaining is protected against possible interference by the new neighbor. Many cases will require the professional assistance of a surveyor or attorney to avoid or resolve problems with pipestems.
*Special thanks to Steve and his input on the improvement of this article.
(The images used for this blog post are for illustrative example purposes only and do not depict any properties that I have dealt with)
