10 Comments Commercial law, litigation, contracts, IP, property law
Many thanks for your reply - a lot of people have said that.
The problem is that law does not always follow logic.
I was wondering if there are any laws, or by- laws for rights of way that we may be pulled up on. For example, I believe if they have had access for over 12 years they would have a case (they have only had access for 10 years though).
There may be some other legal loop hole.
As others have said there should be little that anyone can take issue with if you simply realign your fence whilst still leaving sufficient space with respect to the right of way.
As regards the right of way, is its existence in any way formalised? That is to say is it marked on any plans?, who maintains it?
Is the right of way entirely on your land?
Many thanks for your response.
I believe the right of way is formalised in sketches and plans held by the council. I have spoken to the council who have said that this is the right of way for residents on my street and they have their own, separate right of way, though choose to access our as where they park their car is just off our right of way.
Only 2 metres of the right of way is on our land - we are only going to take 1.5 metres though. They can still access their car parking spot on their property, though it is a little more difficult.
I know that morally, what we are doing is correct, though they have threatened civil action and I fear there may be a legal loop hole connected with rights of way.
I understand there is a law if that persons have been accessing a right of way for more than 12 years, they have the right to it. My question is, does this mean 12 years in one go, or can it mean for 12 years for a number of owners. e.g. if one owner has accessed it for 8 years and the previous owner for 8 years, does this mean that they now have right, or does one sole owner have to have had access solely for 12 years or more?
Hi Roger. I think the issue in your case is that the passage is one of convenience - and not necessity - to your neighbours. I don't know if the law is different in WA but I've had a quick look on the web and found the following info:
"An easement of necessity could arise where a property becomes “landlocked”, that is, where an owner is without access to or from her/his property because all surrounding land belongs to others. In such circumstances the courts have found that an easement of necessity in the form of a right of way exists only when the right claimed is essential and not merely a matter of convenience."
And then the WA legislation states:
"The Court may... declare any estate or interest in the piece of land wrongly built upon to be free from any mortgage, lease, easement, or other encumbrance affecting that piece of land, or vary, to such extent as it considers necessary in the circumstances, any mortgage, lease, easement, contract, or other instrument affecting or relating to that piece of land. "
I couldn't find any information on the 12-year rule. It sounds wrong to me - maybe it refers to the exclusive use of public land. But I still think you should be able to move the boundary to its correct position.
There is a 12 year rule but the rule is only a guideline and can be formalised by a court under the common useage rule even if the right of way is under 12 years old. It does not require solely one owner to use it as several owners can use it consecutively.
It seems that the right of way has been in place and formalised by common useage as it is formalised by both the council and is also formalised by common useage.
Id tread carefully as there is no such thing as a right of way exclusively for an owner. If other people by common useage have been using it it becomes an easement by its nature and you cant take it back even if the land is yours.
The fact that they have their own right of wayt complcates matter and its unclear what the end result will be.
Hang on, a right of way benefits not you the owner but others who use it. If it is in existence (on the title or plan) the law of necessity etc is irrelevant. When you buy a property which includes a right of way that is a burden that runs with the property that you must bear.
You can a) move you fence w/o obstructing access to the right of way or b) get a solicitor to file documents with the LTO to extinguish the right of way, arguing non or insufficient usage.
I am in the situation where my neighbour owns the laneway (so it is a private laneway) and it has been used as a right of way for 12 properties, mine has used the laneway for over 30 years, however there is no right of way on my title. I am currently applying for a right of way easement under section 88k of the Conveyancing Act.
I have provided below some notes regarding the reason why I feel you will not be able to move your fence - perhaps? Any advice to the contrary has been incorrectly provided. The focus should be on why your neighbour doesnt use their own right of way. If you are intending to make their only one smaller then I think you will waste time building a fence that will have to be removed. I also have a number of case studies where right of way access has been granted in the Supreme Court. It comes down to a matter of compensation (if any) to the owner.
I have a lot more but this should be enough.
I suggest a negotiation a monetary sum without solicitors - unfortunately some owners cant see the logic in this and the solicitors are the only ones that end up winning.
Department of Lands states:
The definition of “Possession” of land is that you are occupying and using it. It means that you are keeping other people off the land.
All adjoining properties are not kept off the land, that is, they are not denied use of the laneway. There is no gate for example denying usage. Sometimes lots which abut a right- of-way do not have a section 167A easement on title because they were not created on the same Plan or Diagram of Survey as the right-of-way.
Section 49 of the Real Property Act 1900 states:
(1) The Registrar General may cancel a recording relating to an easement in the Register if the easement has been abandoned.
(2) An easement may be treated as abandoned if the Registrar General is satisfied it has not been used for at least 20 years before the application for the cancellation of the recording is made to the Registrar General, whether that period commenced before, on or after the date of assent of the Property Legislation Amendment (Easements) Act 1995
(4) Before cancelling any such recording, the Registrar General must consider any submission made, by a person having a registered estate or interest in land benefited by the easement, within the period fixed by the Registrar General, in a Notice of Intention to Cancel the Recording served personally or by post on the person. The period must be not less than one month from the date of the Notice.”
It is clear that the laneway has not been abandoned. It is currently being used by all adjoining properties and that the owner has not made any attempt to keep adjoining owners off the land.
It may be proven that there is "long-term useage.
In order for emergency services to provide a successful service to the community, these agencies need to gain access to properties in an efficient manner and have sufficient room to maneuver and operate appliances and emergency vehicles within the proximity of the emergency.
The traffic conditions and distance to a site is not something that can be controlled by the relevant authorities, however the road design and ability to gain close access to a property can and should be influenced to allow adequate access for emergency vehicles. The importance to reaching a fire or medical emergency quickly is somewhat obvious with human life and property damage at danger. However, efficient access to a property is particularly critical given that the nature of a fire significantly changes when ‘flashover’ occurs. Should access to a property be restricted, then significant consequences could apply to both property damage and human life.
It takes time for fire hoses to be set up from a hydrant to a fire appliance and subsequently from the fire appliance to the fire. However if sufficiently close access to the fire can be gained, the hose reel on the emergency vehicle can be effectively used as the first source of water to the fire. Emergency vehicles generally do not exceed a width of 2.5 metres (excluding mirrors). As the laneway is greater than 3 metres in width, emergency vehicles would use the laneway as the first source of water to the fire.
All gates require an Activities Local Law permit. Before a gate can be installed Council must ensure egress and structural safety requirements are met. Council can have a gate removed from a road, regardless of that road’s status, if it perceives it is a safety risk. A Planning Permit is also required to install a gate regardless of the status of a road.
Any Council approval, if given, would be subject to appropriate conditions which typically include requiring an owner to enter into an agreement under Section 173 of the Planning & Environment Act, together with a rental payment to the Council. The agreement must address matters including indemnifications; public risk insurances; use of the enclosed road; provision of keys; retention of rights and rebuttal of adverse possession.
Councils encourage the adoption of a coordinated long-term approach to the use and upgrading of rights-of-way in areas undergoing redevelopment. In addition private rights-of-way are often used by the public for a range of purposes and in established areas are increasingly relied upon for access. Sometimes these rights-of-way have been acquired by the local government and, in many cases, dedicated as public roads. There are a range of approaches which have been adopted for the management of private rights-of-way. These range from upgrading their status to a minor public street with public utilities, lighting, postal services, landscaping and parking bays, to paving and draining.
Department of Lands Registrar General’s Directions
Section 12.2.8 Easements Created By Prescription
Where there has been long continued use or exercise of a right over another persons land that has the characteristics of an easement, in theory the Court will presume the grant of an easement…
The legal recognition of this kind of right depends ultimately upon the acquiescence of the servient owner. There must be proof that the servient owner knew of the exercise of the right, was under no legal disability to make a grant of the right and did not take steps to prevent or limit the acts of the user.
The Courts have considered a variety of prescriptive easements, being:
- Right to take water from a spring or pump
- Right of grazing
- Right to drain sewage
- Right to discharge water onto or over adjoining land
- Right to air
- Right to light
- Right of support
- Right of way
- Right for fencing and property protection.
A prescriptive easement cannot be created over
Torrenstitle land. Any prescriptive easement which is in existence when the servient tenement is converted to Torrenstitle will remain effective even though not recorded on the title. In order to have a subsisting prescriptive easement recorded on the Register it is necessary to obtain an instrument or Court Order confirming the existence, nature and extent of the easement. The instrument would take the form of a transfer or conveyance depending on the title system of the servient tenement. The easement would be recorded through the lodgment of the Court Order together with a Request where both tenements are Torrenstitle.
12. Section 88K of the Conveyancing Act 1919
Power of Court to Create Easements
(b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
(3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)–(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies.
(4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.
(6) Such an easement may be:
(a) released by the owner of the land having the benefit of it, or
(b) modified by a deed made between the owner of the land having the benefit of it and the persons for the time being having the burden of it or (in the case of land under the provisions of the Real Property Act 1900 ) by a dealing in the form approved under that Act giving effect to the modification.
(a) if the land burdened is under the Real Property Act 1900 , when the Registrar-General registers a dealing in the form approved under that Act setting out particulars of the easement, or of the release or modification, by making such recordings in the Register kept under that Act as the Registrar-General considers appropriate, or
(9) Nothing in this section prevents such an easement from being extinguished or modified under section 89 by the Court.
Section (1) of the Act states that the Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
The easement is reasonably necessary for the effective use of the subject property as the laneway has always been used as a passageway for vehicle access so that on-site parking is available.