QLD Can I Close Off the Driveway Under Property Law?

[Jazzy77]

We have an issue with a neighbour and driveway access. There is a right of way easement that runs through our property to allow access to our neighbour's property up behind us. The issue is where the driveway/easement runs a large proportion of the driveway is not actually located on the easement (the driveway was installed before we bought the property); it has been in place about 12 years.

Am I able to close off the section of driveway that runs over my actual land under property law? Or am I not able to do so as the driveway has been in place for so many years? I know the neighbour could claim adverse possession, but he has to have 12 years + of continuous access?

Our neighbour moved down south about 8 years back,and has rented the property on intermittent basis ever since.But there has been many occasions where there has been nobody in his property for periods of 3+

The main reason I want to shut the access is because he never contributes anything towards the actually upkeep of the driveway, and I am forever repairing the driveway because of his tenants (most of which are druggies) and I have had enough of the situation.

Thanks.

 

[Jazzy77]

Any help or similar situations would be welcomed.

I have closed the driveway off anyhow, and will sit back and wait for the fireworks to erupt when the neighbour eventually realizes that he can no longer get in through my land.

 

[Rod]

You've completely closed access via the easement?

Can you relocate the driveway so it uses the easement? Were terms created with the easement saying who is responsible for maintaining the driveway?

Hard to visualise the situation without a diagram

 

[Jazzy77]

No, the easement access has not been closed off. (just the area that is on my land) I contacted the NRM and they stated that if i put a gate on the easement the neighbour has to have access.

No, there was no real agreement when t came to maintenance, it was always if we got a load of stones down we went halves, but once he left he only went halves in one load and that is it, as it stands he still owes me $800 for stones i put down a few years back as he refused to pay for them.
The easement is in the red and the driveway is pretty much in the faint white area, so anything that is not in the red section is on my land.Basically when the driveway was installed they chose the shortest and easiest pathway as there are numerous gullies, creeks and big trees where the easement should be. The area is about 300mtrs in length .

 

[Rod]

OK. Diagram makes it easier

here was no real agreement when t came to maintenance, it was always if we got a load of stones down we went halves,

This an agreement. You're forcing the issue now anyway. Keep us informed.

 

[Gorodetsky]

Hi archerpalms,

I'm not a solicitor.

The land inside the easement is your land...You have all the rights of ownership, except excluding this person (benefitted party) from accessing.

The benefitted party may be able to try adverse possession stuff, but other than that they have no special right to your land outside of the easement. Adverse possession can be an expensive gamble for both parties.

If the driveway was there before the easement was created, depending on what the wording of the easement grant is, it might be that the easement boundary is considered incorrect. It depends a little on how the easement was created.

You have zero obligation to maintain the easement for their access, but they have no obligation to maintain it either, unless required by the easement grant or some unmentioned detail.
I'm guessing you access your own home along the driveway. Is this the case? Because if it is only used by your neighbour, you could just leave it...

I hope this helps

Regards

 

[Jazzy77]

I am aware that he may try the adverse possession route, but he has to prove 12+ years of continuous use. He left to go down south 8 odd years ago, and since then he has had tenant after tenant in there. But there has been many an occasion that there has been no one at all in the house for at least 3 months straight.I don't really think he would want to go down the expensive legal path as he has been bitten there before.

I also read somewhere that if an easement was not used after 30 years it could be removed?

His last lot of tenants were the last straw, a bunch of druggies who on average had 10-14 cars a day going up there! and after a lot of rain with that many cars, the driveway turned to trash.

The easement is a right of way grant,that provides access only for the neighbour and ourselves.

The driveway was installed after the easement was put in place ( around 6-8 years after i would say) as there was no access at all to this land in the beginning, the people before us were cutting through the neighbour's property, until that went sour.

 

[Gorodetsky]

Hi archerpalms,

OK, I think we're not talking adverse possession, since the other party is not in possession of the land, he's not living there...I think we are talking prescriptive easement. And I get the impression he needs 20 years for that.

So easement created, then driveway built...Didn't survey properly or something, so the driveway is built outside of the easement.

And you've blocked the other party's access to your driveway (fair enough), but not the easement. (Wise move).

It seems unlikely the other party will have much success with prescriptive easement or adverse possession.

There is nothing to stop the other party making a new driveway on the easement land...(except the cost I suppose, and he probly needs to survey the corridor). You understand he has the right to make the easement accessible by vehicle.

The other party will need access to their property...They might bring some sort of action in desperation...They'll certainly try to get the police involved when they reach your blockage. You need to calmly explain to the police the situation and escalate to a more senior officer if the officer you speak to tries to pressure you.

You might offer to move the easement to the driveway if the benefitted party bears all costs for maintaining the easement in a trafficable condition, (get conditions written into the grant). But for god's sake don't make them any offer without getting a solicitor involved.

I hope this helps

Regards

 

[Jazzy77]

Hi Gorodetsky

I had a bit of a look for prescriptive easement and found..

Another way an easement can be created is through a rule called prescription. This type of easement can be acquired by long use, which is right acquired if someone uses the land for a period of 20 years or more.

Each state has slightly different rules surrounding the acquisition of easements through prescription. For example in Queensland, the laws do not allow rights of way to arise by prescription.

I would have to say, if it did apply in QLD, it would probably be of a similar time frame, (20 years) and the driveway has not been there that long.

The easement runs along the fence line (probably the easiest spot to put it on paper..) the easement was surveyed properly as i found part of an old peg and a bit of tape that marks the easement the other day when i was looking thru the jungle. It is an easy 10 mtrs away from the driveway.

When any point/form of argument eventually arises i am going to use my point of "i have not closed off the easement, the easement is still there and it is still open, i have just closed off my own land"

Yes, i know i am not allowed to deny him access to the easement proper, and that i have not and will not do, he is free is free to access it

I do not think he would want to build a new access via the actual easement as it would cost him more than his property is worth, there would be an easy mtrs of deep gullies and creeks to cross.

We had Police here not long ago, monitoring the druggies up the back, we also plan to notify the local Police of the situation (it is only a 1 man station) just in case one of his cronies cuts or damages the chain, when they come to inspect his property (we have also installed signs stating the driveway is closed and any access past the chain will be via way of trespass.

 

[Gorodetsky]

Hi Archerpalms,

Yeah, looks like you are all set.

He'll probably put some threatening legal letters across...After he's tried the cops.

You've found old easement survey pegs, cool, show the cops, it'll help your case.

The actual easement has really deep gullies and is pretty impractical? That may actually be a bad thing for you.

I can't recall the precise wording (and the wording and detail is everything), but, someone can go to court and ask for the court to grant them easement access if there is no reasonable way for them to access their land without it and if they have exhausted all reasonable means to obtain access to their land....I'm unsure as to how that might play out, and am certainly no expert.

I don't think the cops will thank you for this matter, they may see you as causing this problem.

If he cuts your chain, don't break the law, just report it to the cops. It'll be to his advantage to draw you into a confrontation, so don't engage with him face to face.

I hope this helps.

Regards