Do you have a right to register an access Easement over your neighbour’s land?
It is not uncommon for friendly neighbours to allow access over their land from time to time on an informal “handshake” arrangement. Whether it be for a track to run through the neighbour’s land to allow better access to an area you own or for you to lay a pipe down to irrigate from a nearby creek.
This is quite common practice.
Though what happens to this arrangement when that friendly neighbour sells their property or passes away and someone new becomes the landowner?
Or what happens when you and your neighbour have a disagreement and it sours the relationship?
Can the neighbour start refusing you access through their property even though you’ve enjoyed that access for years?
Do you have any rights to enforce your handshake agreement for access?
Well the short answer is yes, in some circumstances.
If you have been given an ‘informal’ access right without being granted a legal right to access or use the land and your neighbour puts you on notice to stop accessing their property, you may be able to apply to the Court to have your right protected if you can establish the following:
1. The imposition of the right of use is in the public’s interest (eg. If you use the property as a cane farm and the right of use is to assist in the farming operations);
2. The neighbour (who owns the land you want access to) can be adequately compensated through money for any loss or disadvantage which they may suffer because of the granting of the right of use, and
3. Either:
a. The neighbour has refused to grant the right of use, and this refusal was unreasonable in the circumstances; or
b. No person with the necessary capacity to grant a right of use can be found.
Whether you are successful in obtaining a legal access right, such as a registered Easement or other access right over the neighbour’s property will be determined on the particular facts.
From case law, those who are successful in being granted legal access rights over a neighbour’s property tend to do the following:
They are consistently courteous towards the neighbour (do not threaten or demand access);
They obtain an independent valuation of the property impacted and offer to pay the difference in the value of the property if the access rights were granted from the value of the property if the access rights did not exist;
They have their solicitor prepare the relevant documents (such as an Easement document that is sufficiently detailed to deal with the use, maintenance, insurance, indemnities, etc) and provide this to the impacted neighbour and take into consideration the neighbours reasonable requests, and
They offer to pay all legal costs, survey costs, registration fees and mortgagee’s consent fees to have the Easement registered over the neighbour’s property.
However, it should be noted that if the access rights would prevent the neighbour from enjoying their land (ie. would prevent them from farming it profitably or from developing it if that was their genuine intention) or it would detriment the structures on the neighbour’s land, then it is more likely that a right of access will be denied by a Court.
Other things that are considered are:
whether there is significant cost associated with establishing any alternative access to the property, and
the historic usage of the existing passageway over the neighbour’s land to access your land.
If you have an informal access through neighbouring property and you want to secure your access rights for the foreseeable future and no matter who owns the property, you should engage an experienced commercial property lawyer to help guide you in obtaining legal access.
The content of this column is to provide a general guide on this topic. Please contact our experienced team for professional advice about your specific circumstances.