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NSW Property Law - Neighbour Preventing Access to Road Traversing My Property

Discussion in 'Property Law Forum' started by AnAlias, 3 December 2015.

  1. AnAlias

    AnAlias Member

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    Hi, I hope you can give me some guidance.

    I recently bought 50 acres. It has an easement through it that was put in by a neighbour so she could access her own property. There is no easement recorded on the title.

    The easement crosses my land next to a very pretty creek which I'd like to access. The terrain is too rugged to build another road, so this easement is the only feasible way for me to access that part of my property that the creek runs through.

    I sent the neighbour who built the creek easement road an email asking if I could share road maintenance costs in order to use it, so I could access the creek on my property. I suggested a 50/50 split in costs. She replied, "I built the road and it's mine, and over my dead body will ye tread upon it." Not precisely in those words, but that's the vibe of it. For our purposes, I have dubbed her "Ms Hostile".

    Our final player is Mr Absent, whose land the road also goes through. I have not contacted him and have no idea how to. For me to reach my property I have to traverse the creek easement across Mr Absent's property, but not Ms Hostile's, she is at the end of the line. I am not sure if Ms Hostile has another road into her place, it looks like she might do on google earth, but I'm really not sure.

    A rough sketch to set the scene:
    [​IMG]


    All correspondence with Ms Hostile has been by email, I've been polite and courteous, hoping she might respond positively to that, offered to pay to have the road graded as a gesture of good faith etc. But alas no dice.

    I'm not sure how long Ms Hostile has been using the creek road, but I'm assuming long enough to have a Prescriptive Easement which doesn't need to be recorded on the title. The previous owners of my property never used the creek road so I don't think I have any cause to justify an easement over Mr Absent's land (unless the fact that there's no other way to access the creek area of my land can be factored in).

    I did enough reading to realise easement law is very tricky and I am really not sure where I stand.

    Can she stop me using this road to access my own land under Property Law? Am I allowed to use this road to access that part of my land that is not otherwise accessible?
     
  2. Therese

    Therese Well-Known Member

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    Hi AnAlias,

    You are right - easement law is a bit tricky.

    To clarify - do you wish to access the part of the road that goes onto Ms Hostile's property to get to the creek, or only the road up to the end of your property?

    I don't see how you cannot be allowed to access a road that goes through your property. My understanding of an easement is that it allows others to access your land, not own your land, so you would still be able to access 'her road' built on 'your property.'

    Under property law I think you should be able to use the road to access the part of your land that is otherwise unaccessible. You acted as a polite neighbour offering her shared costs - it is her loss that she didn't accept.

    I would suggest talking to a lawyer, but I am fairly confident you cannot be prevent from using your own land.
     
    Rod likes this.

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