QLD Getting access to neighbours land to do maintenance on property that is close to the boundary

[OldHouse]

Hello, I live in a old 2 storey weatherboard house that was built around the 1900s. It was built very close to the side boundary (like many of the homes in my neighbourhood) and to do repairs such as painting I need to enter my neighbours land (with their permission). I have very recent new neighbours that will not give permission for me or painters to enter their land to do repairs, even when asked in writing with weeks of notice.

What can I do? I can’t let my timber house fall into disrepair as it will need regular maintenance. Can they refuse entry for maintenance? Is it best to somehow get an easement for maintenance, and what would that entail? Are there any laws that can help without spending a fortune in court?

Many thanks,
OH

 

[John R]

Hi @OldHouse
To my knowledge, Queensland, unlike say NSW with the Access to Neighbouring Land Act 2000 (NSW), does not have specific laws which deal with access to a neighbour's property for maintenance, etc.
That said, where unable to otherwise agree about access, Queensland landowners and property developers may rely on section 180 of the Property Law Act 1974 (Qld) to get a court order for access to neighbouring land to complete building works. Obtaining such a court order would not be cheap. See also

Easement Disputes — LaBlack Lawyers Pty Ltd

Disputes regarding easements can take various forms and involve many different questions of law and fact. Easement disputes of any form can have significant consequences for all parties involved and can have serious and irreversible effects on the ownership and value of the property involve

www.lablacklawyers.com.au

What can a developer do if a neighbour does not allow access to the neighbouring property? - BRH Lawyers

As south east Queensland and key regional areas continue to become more densely developed, the scope for disputes between developers […]

www.brhlawyers.com.au

CONSTRUCTION Alert: No access – when a statutory right of user will circumvent a problematic neighbour - Thomson Geer

This alert will examine the current position at law from a developer's perspective and expose options that developers might take to protect their positions.

www.tglaw.com.au

I'd suggest Neighbourhood mediation as the next step and consider offering some reasonable compensation in exchange for the temporary access: Neighbourhood mediation
Good luck and please keep us updated.

 

[OldHouse]

Thank you for that information!

Is it worthwhile pursuing an easement or licence if mediation goes nowhere? As maintenance will need to be done when necessary is it better to have an agreement that is permanent?

Would this situation warrant an easement/licence (ie. would the court give an easement/licence in this situation?) would you have any idea how much this would cost?

Almost every second house on my street would need this done if they had neighbours like mine...

 

[John R]

Hi @OldHouse - Sorry, I'm not sure. Perhaps @Rob Legat - SBPL (I see him on these forums as the resident QLD Property Law lawyer) may be able to assist you?

 

[Rob Legat - SBPL]

There's precedent for the court granting an easement in the nature you're asking for, in similar circumstances. In a 2010 Supreme Court case the applicant's house was built close to the neighbouring boundary making maintenance difficult, such as 'painting, cleaning gutters, controlling vegetation, maintaining utilities', without accessing the neighbour's property. In that case it was found that the access was reasonably necessary and an order for a limited right of use by way of easement was made. Access was authorised to unlock a gate into the property to use a small section of land to have the required access.

As mentioned in the links kindly provided by @John R , there are several factors which must be present before an order can be obtained:
1. It has to be reasonably necessary for the reasonably effective use of the land - the above case demonstrated it was in the circumstances;
2. It has to be in the public interest to use it in the proposed manner - again, it was;
3. The adjoining owner is able to be adequately compensated for the grant of the right; and
4. The adjoining owner has unreasonably refused to agree to the request.

Item 4 indicates you must have gone to the adjoining neighbour with your proposal, in detail, and (I suggest) in writing - clearly setting out how, when and why you request the access. Put forward your whole plan. If they refuse on reasonable grounds, you'll be unlikely to get an order in your favour. Refusing to answer can be considered unreasonable, provided sufficient time and effort is made on your part.

Then there's the question of compensation. If it can't be determined between your or the court, you won't get the order. The amount payable can be totally at the discretion of the court. In the case mentioned above, compensation was set at $5,000.

You're also looking at an application to either the District Court or the Supreme Court for such an order. I've no idea on the costs of such an action as I don't do them myself, but you're easily looking at well into the five figures range.

 

[OldHouse]

Thank you very much for your reply and all the information. I would be really interested in reading that judgement. Would it be possible to find out the name of that case so I can look it up?

I will try mediation first. Is that best done through a property lawyer or can I utilise the QCAT neighbourhood disputes mediation?

It would be great if this could just be settled through QCAT just like other neighbourhood disputes rather than having to go to the Supreme Court!

 

[John R]

I knew @Rob Legat - SBPL would be able to shed more light on the question!
I believe this is the 2010 Supreme Court of Queensland case that he referred to Steer & Anor v Hemmings & Anor [2010] QSC 460 (7 December 2010).
I suggest trying the Neighbourhood Mediation to start - Neighbourhood mediation. All the best.

 

[Rob Legat - SBPL]

Yes, it's Steer v Hemmings. The type of order you're after is well beyond the scope of QCAT, it can equate to permanently altering someone's use of their own land.