Can a Right of Way Over Land Be Created Against the Owner’s Wishes?

It may come as a surprise but owning a property does not necessarily confer exclusive rights to it. Situations may arise where an owner might have to concede that others have rights, including the right to cross over their land. In this article, we look at whether a right of way can be created against the land owner’s wishes.

When might you need a right of way over someone else’s land?

Imagine you want to build a garage at the bottom of your garden but to access it would mean having to cross your neighbour’s land. To do this, you will need to seek their permission each time to avoid trespassing.

Asking your neighbour for permission every time you needed to cross their land would be more than inconvenient, especially at unsociable hours. You might request a licence allowing you to cross without seeking permission each time. However, this merely confers permission which could be revoked.  If you fell out with them or they moved, the new owners would come to the property with their rights intact, and you would have to ask for permission again.

When you want to sell your house, the buyers will want to know if you have the permanent right to access the garage.

Consequently, before building the garage, you will want to ensure you have a permanent right to the necessary access and the ability to pass it on to any future owner of the property. What you need is your neighbour to grant you an easement. The term derives from the Old French term “aisement” meaning something that makes the enjoyment of land easier. Types of easement are varied, but a right of way is probably the most important.

The above represents a simple illustration, but it can be seen how important a right of access to a plot of land can be. It can be of critical importance to a commercial developer and make or break a development scheme.

But what if the affected owner were to refuse to grant an easement? Can the issue be forced?

What is an easement?

An easement is where a section of land on a property, that gives someone else the right to use the land, is registered with the NSW Land Registry Services land for a specific purpose.

How is an easement created?

Easements can be created by an express grant; the resumption or acquisition of land by the Government; or by a Court order.

If the owner of land has good reason for the need to use part of another’s land, the Court can order the creation of an easement overriding any objections there may be.

Long-term use of a right of way, even where there was no legal entitlement, can create a legal right of way. In NSW, the minimum period is 12 years.

How do I find out if there is an easement on my property?

To find out whether there is an easement on a property and its details contact the NSW Registry. We can do this for you.

If asked do I have to agree to an easement on my property?

The response to any reasonable request for an easement should be to agree. In NSW, the Court has the power under s88K of the Conveyancing Act 1919 (NSW) to grant an easement on a property where the following apply:

• Attempted negotiation - All “reasonable attempts” have been made to obtain the easement by agreement but without success
• Public interest - It is not inconsistent with public policy.
• Reasonable necessity - The easement is “reasonably necessary” for the effective use or development of the land.
• Compensation - The landowner subject to the easement is to be compensated.

Reasonable necessity

What is reasonable necessity is a matter of interpretation. In Gordon & Anor v Lever (2019) the parties owned adjacent properties near the Richmond River in northern New South Wales. For some years, the Gordon family had accessed their property through land owned by the Lever family until a bridge was washed away in heavy rain.

After this, to obtain access to the Gordon’s land, it was then necessary to use a ford in the river, which was weather dependent. The ford was also Crown land, and the use was not legally permitted. The Gordon’s applied for an easement. In the first instance, the judge granted an easement but at limited times. On appeal, it was held that the easement was “reasonably necessary” for the Gordon family to effectively use their property and there should be no limitation as to time. This would also avoid trespassing on Crown land.

Compensation

The level of compensation and response should also be reasonable. In ABI-K Pty Ltd v Frank Shi (2014), compensation of $40000 was offered for pipes impacting a property. This offer was rejected and a demand made for $250000. The Supreme Court agreed that the easement request complied with s88K and awarded compensation of just $21000 out of which the developer’s costs were to be met. 

What if you are buying a property?

As easements form part of the title to a property, a buyer will be bound by it. Your solicitor needs to check whether the property is subject to any easements. The existence of an easement can affect the property's value and might also prevent being able to build on the part of the land affected by the easement.

Can an easement be cancelled?

Cancellation or changes can be made by agreement between the parties or by the Registry if provided with the evidence that it is no longer needed.

Contact our Property Lawyers in Sydney, NSW

Szabo & Associates Solicitors can provide expert legal advice on property development and disputes. If necessary, we can guide you in both the Land and Environment Court and the Supreme Court.  We can assist with issues such as negotiating, registering, or removing an easement and any litigation arising from a dispute over an easement. Please contact us on 02 9281 5088 or fill in the online contact form.