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NSW Alternatives for Accessing Neighbour's Property under Property Law?

Discussion in 'Property Law Forum' started by Ronb9956, 12 August 2015.

  1. Ronb9956

    Ronb9956 Member

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    I would like to have access to a strip of my neighbour's land, an area of about 1 metre x 6 metres, that would provide enough space for a driveway at the front of my property for off-street parking. I don't want to build on or alter the land in any way, it is needed just to swing open the car door and walk on.

    Can you suggest possible alternatives under property law for gaining use of the land (e.g. licence to use; right of way; relocating the boundary) and how a financial consideration might be structured. I would like to have a range of options to offer the neighbour, which is a body corporate.

    Thank you
     
  2. Tim W

    Tim W Lawyer

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    Write to the Body Corporate and ask.
     
  3. Ronb9956

    Ronb9956 Member

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    Could someone give me a helpful answer please?
     
  4. Tim W

    Tim W Lawyer

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    In the language of Property Law, what you actually want to do is encroach on their land
    for your own convenience and benefit.
    Understand that your neighbour has no obligation towards you in respect of your access.

    Relocating the boundary is not an option.
    Understand though, that relocating the boundary and relocating any fence are different things.
    You might be able to persuade them to re-locate (part of) the fence - especially if you pay for it,
    but understand that they have no obligation to do it.

    I do not see that you have any basis for creating a right of way where one does not already exist,
    especially if your land is not otherwise landlocked.

    You might be able to negotiate a licence for a car door to swing over their land.
    If I was that Owners Corporation's lawyer, I would be suggesting that any agreement
    come with the condition that there be no gate post or other structure on their land,
    and that the movement would not obstruct access for people or vehicles on their land.

    I don't see that you can lease the land you want to use, because Common Property in a strata is not generally capable of being let.

    You will not be able to deal with the Owners Corporation by speaking to individual members.
    You will need to correspond with the corporation, perhaps through their managing agent.
    Or to put it another way, write to them and ask.
     
  5. Ronb9956

    Ronb9956 Member

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    Thanks for that Tim. It seems like the licence is the simplest and most productive approach.

    Can you explain briefly why re-defining a boundary is not an option. It seems from this:

    Boundary definition - Registrar General's Directions

    that it is a procedural issue if both parties agree to it?
     
  6. Tim W

    Tim W Lawyer

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    Because
    • there is a cheap and simple alternative (a licence) that does not require the
      costs of survey and redefintion for such a small lot;
    • because there is no land-use-derived reason to transfer it to you (even for money)
      when a licence simply makes more sense;
    • because selling it to you would require the consent of the Owners' Corporation,
      expressed as a resolution in General Meeting. The meeting can be difficult to arrange,
      and the decision may not be easily reached (bear in mind that one or two lot holders
      having no objections in principle is not the same thing as an expressed resolution);
    • and lastly, because they simply have no reason to agree to it, or to even consider it.
      Aside from an irrelevantly small sum of money, there is no benefit for the individual lot holders,
      nor for the Owners' Corporation generally in transferring it to you - for example, where is the potential gain in the value of their land?
      So why would they?
     
  7. Ronb9956

    Ronb9956 Member

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    OK, thanks for your detailed response.
     

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