Shared Alleys and Atlanta Intown Living:

Facts: 

Alleys were previously a part of virtually all intown residential development.  They were touted as access points for household servants, for delivery of one’s oil, coal and ice and, in some instances, to service the “convenience” (outhouse).  Some of these means of access, thought planned, were never opened nor used.   In several instances, we have found that, if the blocks and lots are now accurately measured, there is no land available for those alleys drawn on old engineering plats/developer promotional maps.   In others we have found the topography such that, without immense work by the developer or later homeowners, the alley, as shown in the record, could never have been utilized.

Regardless, those alleys that were passable were, until the 1970’s, utilized as City access for garbage collection.  In the 1970’s, the City moved to a more modern sanitation system and, in order to avoid future liability, abandoned all interest in all alleys (excepting three named routes downtown).  Since this abandsonment, some alleys have remained in active use, others have become overgrown in brush and trees and some have been claimed by abutting owners.

Current Owner/Buyer Issue:

You are all set to purchase a historic lot which, per record, is serviced by an alley. Your intent is to add a beautiful new garage and guest house. Per the surveyor and your nephew, the law student, you have absolute rights in use. Those other property owners, who abutt the alley and who have terraced and planted the original route, think not.  Who is correct?

The Law:

Although there are general rules of rights and usage, alleyways most often serve to contort legal reason through exceptions and individual fact patterns. 

1.          The base nature of the individual alley may be an easement (declared use by plats, maps, deeds, etc.) or that of a private way (obtained by use and maintenance over an extended period).  Rules tend to differ with each type.

2.         If an alley is an easement and remains in ongoing usage it is generally usable by all abutting landowners. 

3.          The general rights in use of an easement are determined at its creation.  Without the permit of those holding a use interest, rights in the alley cannot be expanded or impaired.  In cases where use of the alley was not possible at the time of the easement creation (extreme topographical rise or fall), it may     be argued that no easement was created and a party may not now regrade the landscape and run                  new traffic along the original intended path.

4.        In certain fact patterns, long term non-use might evidence abandonment of the easement.  In these same instances, where an abutting property owner has, in good faith, used and claimed the area over a long period, adverse possession might serve to terminate the easement.

5.        In those instances where there is no actual land area for an alley as originally drawn, it can again be argued that no easement was created.  Where there remains a small strip of land (land not conveyed out of the developer is known as a “gore”) running between abutting owners, ownership can be established through adverse possession.  However, to make this a matter of record, the abutting land owners most often agree to divide the strip and complete a process to add the property to their own.

6.        If a right of passage is necessary to access to one’s property and has been long established through use and claim of right of use, it is in the nature of a private way.  A private way may be abandoned   and rights lost through failure of use and failure to maintain the way.

Resolution:

Although your realtor may have worked the area for years, your surveyor may be the very best, and your nephew may one day make a fine “dirt” lawyer, I would not fully rely on their opinions.  Talk with an attorney who specializes in real estate, walk the access route with that attorney and talk with those who may be your new neighbors.