I have beeen unable to obtain a logic explanation as to the difference between the two. My beef is that the dominant property with the right of access insists on using that right to drive their vehicles, caravans, and trailers through our titled and narrow 3.5 metre driveway into their property solely designed to access our house at the end of this battle axe lane. They also have their own separate driveway. I thought that right of acces meant right of pedestrian access as opposed to a right of carriageway that allows vehicles and pedestrians to use the easement. Can someone make sense of all this please!
I went to a lawyer who told me there is no difference between the two Rights and that they can have as many entry points as they reasonably wished including vehicular access. He wouldn't go any further. If there is no difference between the two Rights, why the different wording?
It gets more complicated , but since you asked the question, here is the full explanation.
On my title documents, I own the 3.5 metre driveway. My Certificate of Title states that the plot on one side of the driveway has the right of access, while the plot on the opposite of the driveway has the right of carriageway. Unfortunately for us the old man and his wife own the one plot, while their daughter owns the plot on the opposite side.
The parents originally owned this 1/2 acre plot with a house at the end of the block with a driveway to get to the house. Later they subdivided the plot into two more parts, where the daughter moved into a new house while the parents moved into the second subdivision after selling their house to us.
They did this so that they could freely use the driveway as part of their property, moving across it continuously (as it is their right to do so) and not allowing us to build a fence to delineate our driveway. Their reason being that they both have difficulty in reversing their vehicles and caravans through a too narrow driveway.
We have allowed unlimited access to both properties as they demanded 20 metres of access points over a 26 metre long driveway (leaving 32 metres of possible fencing) but they will not agree to have a fence in between their entry points because it interferes with their rights of access. We had served them with a Court fencing order which they totally ignored.
Can I build a fence in between the areas that they do not need to cross as they have already planted sugarcane-like grass on the driveway boundary without our agreemant to do so?
The latest is that they have now proposed to have some flimsy single layer brush fence panels that can be removed at will and blow down on the next windy day. Do I have to agree to all their demands with no rights of my own?
The bottom line is that only after buying the property 18 months ago, last week we have put the house up for sale. We'we had to endure verbal abuse, threats and sexually obscene acts perpetrated on our visitors from the old man who has also vandalised our other boundary fence three times. The police do not want to get involved because of his age (84)
It gets more complicated , but since you asked the question, here is the full explanation.
On my title documents, I own the 3.5 metre driveway. My Certificate of Title states that the plot on one side of the driveway has the right of access, while the plot on the opposite of the driveway has the right of carriageway. Unfortunately for us the old man and his wife own the one plot, while their daughter owns the plot on the opposite side.
The parents originally owned this 1/2 acre plot with a house at the end of the block with a driveway to get to the house. Later they subdivided the plot into two more parts, where the daughter moved into a new house while the parents moved into the second subdivision after selling their house to us.
They did this so that they could freely use the driveway as part of their property, moving across it continuously (as it is their right to do so) and not allowing us to build a fence to delineate our driveway. Their reason being that they both have difficulty in reversing their vehicles and caravans through a too narrow driveway.
We have allowed unlimited access to both properties as they demanded 20 metres of access points over a 26 metre long driveway (leaving 32 metres of possible fencing) but they will not agree to have a fence in between their entry points because it interferes with their rights of access. We had served them with a Court fencing order which they totally ignored.
Can I build a fence in between the areas that they do not need to cross as they have already planted sugarcane-like grass on the driveway boundary without our agreemant to do so?
The latest is that they have now proposed to have some flimsy single layer brush fence panels that can be removed at will and blow down on the next windy day. Do I have to agree to all their demands with no rights of my own?
The bottom line is that only after buying the property 18 months ago, last week we have put the house up for sale. We'we had to endure verbal abuse, threats and sexually obscene acts perpetrated on our visitors from the old man who has also vandalised our other boundary fence three times. The police do not want to get involved because of his age (84)
Not really possible to make further detailed comment without seeing the drawings
(no, don't post them here).
The heart of your problem seems to rest here:
You often see the term "right of access" used in the context of things like
access to/ for services and utilities - such as drains, or water mains, or electricity supply.
"Carriageway" typically refers to access suitable for vehicles.
This includes vehicles belonging to the occupant(s), but also includes things like delivery vans, fire trucks,
and utilities service vehicles.
I'm guessing that the underlying questions here are damage to the easement, and nuisance.
(no, don't post them here).
The heart of your problem seems to rest here:
You often see the term "right of access" used in the context of things like
access to/ for services and utilities - such as drains, or water mains, or electricity supply.
"Carriageway" typically refers to access suitable for vehicles.
This includes vehicles belonging to the occupant(s), but also includes things like delivery vans, fire trucks,
and utilities service vehicles.
I'm guessing that the underlying questions here are damage to the easement, and nuisance.
My main question , besides the fence issue, is whether the right of access by the one adjacent property means driving their vehicles on our driveway to get to their property and not just pedestrian access, when they already have access from a second entry on the other side of their plot
Hard to say without seeing the actual documents,
and without knowing the history of the particular right of access,*
but yes, it is possible that your original idea,
that "right of access" means by foot only, is mistaken.
----------------------------------------------
* for example, did their other access exist, or not, at the time of granting of the easement?
General access to an otherwise landlocked lot is one thing,
but an easement does not always and automatically operate
to grant a landholder a (so to speak) "back gate of additional convenience".
and without knowing the history of the particular right of access,*
but yes, it is possible that your original idea,
that "right of access" means by foot only, is mistaken.
----------------------------------------------
* for example, did their other access exist, or not, at the time of granting of the easement?
General access to an otherwise landlocked lot is one thing,
but an easement does not always and automatically operate
to grant a landholder a (so to speak) "back gate of additional convenience".
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When they subdivided the area that now claims the right of access to their property, the DA for their house included an access point at the other end of their house, and not through the driveway. I can only guess that the right of access would have been applied at the same time as the DA and not before, since that plot had been part of the land that included our area before we purchased it in 2019. The subdivision occurred in 2018.
You are r.ight in suggesting that this is a case of '"back gates of additional convenience".
I am grateful for the time you are so graciously allowing to solve this perplexing predicament.
You are r.ight in suggesting that this is a case of '"back gates of additional convenience".
I am grateful for the time you are so graciously allowing to solve this perplexing predicament.