Rights of Carriageway and Access

READ HERE FOR THE MOST IMPORTANT THING TO LOOK FOR WHEN BUYING YOUR HOBBY FARM!

DO YOU HAVE LEGAL ACCESS TO YOUR HOBBY BLOCK?

This article may assist in understanding your property access.

Experience Shows the MOST IMPORTANT POINT to LOOK FOR WHEN BUYING YOUR HOBBY FARM is that you have legal access and your property is not “landlocked.” This doesn’t mean your property has to have council road frontage, in fact most recreational hobby farms I see , don’t have access from a council road.

SO WHAT ELSE IS THERE? READ ON BELOW!

The most common is access by an EASEMENT. The legal definition of an easement is ‘the right to cross or otherwise use a portion of someone else’s land’

This easement for access to your hobby block is generally referred to as “a right of carriageway” (or right of way)

CHECK OUT THE DIAGRAM.

As you will see

• Lot 1 has road access

• Lot 2 has no road access

• There is one easement over lot 1 which crosses into lot 2

• This easement burdens the land of lot 1 and benefits the land of lot 2

This easement gives Lot 2 the right to access their property through Lot 1’s land. Without this easement, Lot 2 would be landlocked and would not have legal access to their property from the road.

In this example the Right of Carriageway is likely to be some type of formed gravel track which the owner of Lot 2 drives down from the road to get to their land

IMPORTANT POINTS:

• The owner of lot 2 has the right to use this at all times, and the owner of Lot 1 must not obstruct or interfere with this use.

• Easements are usually but not always registered on the Title to the property. Registration takes place with Land and Property Information. The purpose of registering an easement over land is to show on the public record that an easement exists.

• If you are purchasing land which has an easement registered on title, you are therefore aware of what the easement is, who it benefits and how it will impact upon your use of the land.

• Action can be taken against if you interfere with their right to access the easement – for example. Lot 1 can’t lock or fence them out of the easement land, nor build over the easement land. If you did, lot 2, may then have the right to cut the lock, knock down part of the fence, or destroy your building or structure that is on the easement land.

• If you are the benefited lot to an easement (i.e. lot 2 in this example) and the burdened lot owner(lot 1) interferes with your right to use the easement, then you have the right to remedy.

WHO MAINTAINS AN EASEMENT?

• Although the passage must not be blocked, it is not the responsibility of the owner of lot 1 to maintain the right of carriageway.

• The owner of lot 1 is not required to make up the way to any particular standard, or to maintain it at any particular standard. Nor is lot 1 required to take steps to ensure the occupants of lot 2 has continued access to the easement.

• Lot 1’s only duty is to refrain from acts that would obstruct the easement which could interfere with lot 2’s use of the land

• It is the owner of lot 2(the benefited lot) to ensure that the easement remains useable(assuming they want access) and they must therefore do any necessary maintenance. For these purposes, Lot 2 has an implied right to enter the easement(right of carriageway) on lot 1 and do whatever is reasonably necessary to make the easement suitable for the exercise of the right granted and to maintain it in a condition suitable for that use.

THIS IS FOR INFORMATION PURPOSES. If you are unsure or you want legal clarification, please consult a suitable property legal authority