LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

NSW Neighbour has Right of Footway - What are My Property Rights?

Discussion in 'Property Law Forum' started by Elizabeth Carr, 8 April 2016.

  1. Elizabeth Carr

    Joined:
    7 April 2016
    Messages:
    3
    Likes Received:
    0
    Hello,

    I have an easement on my inner city property that gives my neighbour Right of Footway, through a gate at the front of my property, then up the side passage of my house, across the back of my property and into a gate in our joint fence to access their property. I am the end terrace in a row of three-joined terraces. My direct neighbour, in the middle of the row of three, makes use of the Right of Footway. The terrace on the far end has not used the Right of Footway for more than 30 years.

    My questions are:

    1. I have a dog. What are my property rights to a secure property, eg, my neighbour often leaves the gate at the front of my property open, so that I can't feel sure that my dog will not be allowed to exit my property. Do I have right to ask them to secure my property? Who is responsible if my dog escapes?

    2. My neighbour often has trades people using the Right of Footway. This means that anyone the neighbour allows to enter my property has full access to my entire property as there is no fence separating the Right of Footway from the rest of my property.

    I know I am not required to fence of the Right of Footway, but I feel so insecure about any number of strangers accessing my property at any time, day or night.

    3. Who is responsible for any accidents that happen while on the Right of Footway?

    4. Who is responsible for any thefts that occur from my property when anyone that my neighbour authorises can access my property?

    Any help on Property Law would be appreciated. I feel that I cannot enjoy my property fully because of this inconvenience, and worry about my security, and also I have zero privacy.

    Thank you
     
  2. Victoria S

    Victoria S Well-Known Member

    Joined:
    9 April 2014
    Messages:
    446
    Likes Received:
    44
    There are no hard and fast rules with respect to easement areas where multiple people have equal access rights. Essentially the issues surrounding security and your dog are issues that must be worked out with the other users, there are no specific laws that state - "people using easements must shut gates so dogs don't get out". Its a difficult situation, but unfortunately there is no section you can quote to the other users that requires them to respect your wishes.
     
  3. Elizabeth Carr

    Joined:
    7 April 2016
    Messages:
    3
    Likes Received:
    0
    Thanks for your reply Victoria.

    This was my first (and only) property purchase. Had I been savvy enough to know about easements and what an inconvenience they can be when one party is disagreeable, I would certainly not have purchased here!
     
  4. Gorodetsky

    Gorodetsky Well-Known Member

    Joined:
    21 February 2016
    Messages:
    88
    Likes Received:
    11
    Hi Elizabeth,

    Yes easements can be a real drag.

    You do understand that while this neighbour has rights of access... You have all the rights of ownership. And unless there are some pretty special clauses written into the grant, they cannot exercise their right unreasonably.

    They cannot prevent your use of your property by unreasonable exercise of their right.

    There is a webpage called "easements and common courtesy" - Google it.

    The final paragraph is the clincher. Victoria S is correct. No hard a fast rules. Some people abuse easements because enforcement is too expensive.

    I suggest you get a sturdy metal gate fitted with a "self closing mechanism", a slam-catch, and a lock, give keys to the easement holders.

    Good luck

    Regards
     
  5. Elizabeth Carr

    Joined:
    7 April 2016
    Messages:
    3
    Likes Received:
    0
    Thank you Gorodetsky,

    I will use the phrase "they cannot exercise their right unreasonably".

    The recommended webpage was informative and self-closing gate are great suggestions.

    As we all live so close together, I'm hoping that, with time, common sense and courtesy will indeed prevail.

    Kind regards,
     
  6. Gorodetsky

    Gorodetsky Well-Known Member

    Joined:
    21 February 2016
    Messages:
    88
    Likes Received:
    11
    Hi Elizabeth,

    Yeah, look, I'm not sure telling this neighbour that "they mustn't exercise their rights unreasonably" is actually a good idea. I think it will proceed badly, and perhaps the 7th point of that page expresses it best:

    "A carriageway must not be used by a dominant owner in such a way that it unreasonably interferes with the lawful use of the servient land by others"

    Personally, I don't think you can get anywhere with privacy issues or who they invite thru, or your fears about theft.

    I just suggest that a self closing gate is not a material interference with their access...and if they intentionally let the dog out, especially if you put up signs, might unreasonably interfere with your right to keep a dog in your back yard.

    Let's just look at your initial questions. Oh, please understand I am not a solicitor, so this is not legal advice:

    Do you have a right to ask? Sure, you can ask.

    Do they have an obligation to do so? No. You'd have to take them to court and prove unreasonable interference with you rights. Cost heaps to do so, no guarantee you'd win.

    Who is responsible if dog gets out? You.

    Yes, anyone the neighbour invites thru has access, however they can't step off the land designated as footway into land not footway. They have no rights outside of the footway.

    Accidents? Dunno, depends on all the details. Don't make the area dangerous and it won't be you.

    Theft? The thief is responsible.

    Privacy? Your privacy is not unreasonably interfered with by people walking thru. Close the blinds, dress if you intend to sit in the back yard. You are aware the footway has other lawful users at all times.

    Good luck
     

Share This Page

Loading...