NSW Help with a Prescriptive Easement?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

sarahjane231153

Active Member
20 August 2014
7
1
31
Can anyone tell me about a prescriptive easement, the process and cost of formalising an easement access which appears to come under the term prescriptive easement?

It has been in place since 1976 and has been used since that time, a gate and access from my property to private road (easement which is already a right of carriage for other neighbours.)
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,234
748
2,894
Sydney
You may care to start here:
http://rgdirections.lpi.nsw.gov.au/...w_easements/easements_created_by_prescription

Was the land still on Old System Title in 1976?
(It's less likely to be Old System, and more likely to be Torrens.
That said, as recently as the 70s, it was not unheard of
for land to still be Old System - especially in cases of farmland
that had been inherited repeatedly, but never bought or sold).
 

sarahjane231153

Active Member
20 August 2014
7
1
31
You may care to start here:
http://rgdirections.lpi.nsw.gov.au/...w_easements/easements_created_by_prescription

Was the land still on Old System Title in 1976?
(It's less likely to be Old System, and more likely to be Torrens.
That said, as recently as the 70s, it was not unheard of
for land to still be Old System - especially in cases of farmland
that had been inherited repeatedly, but never bought or sold).
The land was part of a subdivision 1978, I purchased the land in 1986 with the access to the lane , which I have used continously, now my neighbour wants to stop me using this access.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,234
748
2,894
Sydney
What documents do you have supporting the existence of the access ?
(it may not be an easement, even if people are using that word on day-to-day-language)
 

sarahjane231153

Active Member
20 August 2014
7
1
31
What documents do you have supporting the existence of the access ?
(it may not be an easement, even if people are using that word on day-to-day-language)
Hi Tim, thank you for your responses,
There is only the implied agreed use, as the gate was installed at the time of the first subdivision and has been used by all owners since this subdivision, but was never noted on the plans. I have used this acces for 28 years, the lane way is land owned by my neighbour, which has a right of carriage way over it for my other neighbours, from a further subdivision of the original subdivision, which now notes their right of carriage way.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,234
748
2,894
Sydney

sarahjane231153

Active Member
20 August 2014
7
1
31
Although they cannot give you client-specific legal advice, a call to LPI may be helpful.
http://www.lpi.nsw.gov.au/about_lpi/contact_us

What has changed that your neighbour is wanting to deny you access?
I don't believe anything has changed just I gave him an opportunity to reopen the discussion, I believe he does not like me using it at all, and it has been a bone of contention with him, I used the term lane way with him on a conversation about one of his trees hitting my fence and asking him to remove it and it started the converstation up again, I did use the lane way in Feb 2014 to clear my paddock from rubbish that comes onto my land when the creek floods and a couple of small trees that fell down, this is the first time of any large usage of the gate one day to clear away rubbish in 15 years.
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,234
748
2,894
Sydney
Do you have any other access to your land?
 

sarahjane231153

Active Member
20 August 2014
7
1
31
I don't believe anything has changed just I gave him an opportunity to reopen the discussion, I believe he does not like me using it at all, and it has been a bone of contention with him, I used the term lane way with him on a conversation about one of his trees hitting my fence and asking him to remove it and it started the converstation up again, I did use the lane way in Feb 2014 to clear my paddock from rubbish that comes onto my land when the creek floods and a couple of small trees that fell down, this is the first time of any large usage of the gate one day to clear away rubbish in 15 years.
yes, however, it is awkward and would destroy some of the area around my
Do you have any other access to your land?

yes, however it is awkward and not a road
 

Tim W

Lawyer
LawTap Verified
28 April 2014
4,234
748
2,894
Sydney
has it just been discussions so far,
or has somebody done something such as padlocked a gate etc?