NSW Partial Sale of Recreational Right of Way

Discussion in 'Property Law Forum' started by Mike Kesterton, 17 June 2019.

  1. Mike Kesterton

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    We own a lot that is landlocked inside a larger lot over which we have a beneficial recreational row. The burdened lot has sold some of this land. Should we have been notified and do we have any rights to stop the sale which essentially reduces the value of our land?
     
  2. Rob Legat - SBPL

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    I practise in Queensland, so there may be some differences between the states.

    Your right of way will not have been ‘sold’ or altered in any way so long as it is registered on title. The easement gives you a registered right to use the subject land for specified purposes - it does not give you any rights in the land itself.

    Very (very) loosely, consider it like a lease of a house. You have the legal right to live there during the lease, but you have no right to stop the landlord selling the house.

    That aside, how do you think it ‘essentially reduces the value of your land’?
     
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  3. Mike Kesterton

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    The ROW is over an entire 800 acre property for recreational use so is inherently linked to our property value. The row has shifted one of its outside borders reducing the amount by over 10% and we have documents from council saying that it is currently under review.
     
  4. Rob Legat - SBPL

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    Here's some things you might want to consider:

    1. So long as your right is registered, it should go with the subdivided land - meaning you won't have lost any area of your right of way. You might have a fence to contend with, and access should be figured out.

    2. Aside from 1, just because you think it will decrease the value of your property does not mean it necessarily will. You should get some expert valuation advice as to what the actual effect of the change may be to the value of your property. Consider in that the likelihood of actual use of that 10%.
     
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  5. Mike Kesterton

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    Thanks Rob, You are of course right but my issue is there is another planned that will be significantly larger and I am surprised that the Council does not have an obligation to notify us as an interested party. The next one which they plan to commence shortly removes access from the creek which will have some effect but it appears we can do nothing but watch!
     
  6. Rob Legat - SBPL

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    Council don't generally involve themselves in titling issues except in the broadest sense - as they're state register issues and not local government.
     
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