NSW Right of access to my property across another

Discussion in 'Property Law Forum' started by Khite, 20 September 2018.

  1. Khite

    Khite Member

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    I am in discussion with a neighbour regarding accessing my property via a "road" through their property.
    I have previously gone through the process of registering easement rights to use a private road across another neighbours property via the "Transferring Granting Easement (01TG)" form.

    The neighbour initially just wanted this to be a handshake agreement, however I indicated that the access has to be legal and permanent, such that if either of us sold our properties, the right to access could not be terminated (as a hand shake agreement could).

    The neighbour has agreed with this approach, but is expressing reluctance at registering right of easement via the 01TG form. The neighbour has indicated a preference for another method to register the right of access, without specifying (or knowing) what that alternative may be.

    I was wondering if there are other methods of establishing permanent and legal right of access that cannot be extinguished, and what the pros & cons of each may be.

    Thanks
     
  2. Tim W

    Tim W Lawyer
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    You could negotiate a licence.
    But an easement is better.
     
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  3. Khite

    Khite Member

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    Thanks for response Tim.

    You suggested I could come to a licence agreement with my neighbour, but from my research I understand that the neighbour could terminate it at will, or if property is sold, the new owner would not be bound by that agreement.

    My research is leading me to the conclusion that easement is really the only option that provides permanent access rights that cannot be terminated. Am I correct in this conclusion?
     
  4. Rob Legat - SBPL

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    Both a licence and an easement are contractual in nature, but an easement has the added factor of being registrable against title so that it may pass with ownership. A licence would need to be assigned, and may be subject to the other party’s consent.
     
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  5. sammy01

    sammy01 Well-Known Member

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    When I bought my residence the solicitor noticed on the plans that we didn't have legal access to the private road (though neighbours property). We wanted it fixed before buying. Solicitor worked with council to fix it... Neighbour wasn't involved. When council divide land or private developer does the same, surely council has a responsibility to make sure the owner of the land has lawful access.
     
  6. Rod

    Rod Well-Known Member
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    Not sure what situation you refer to here. While councils can sell their own land, they have no role to play in ownership rights on titles for private property. It is up to the seller and purchaser to look after their own respective rights in the transaction. I'm against giving councils more power, they have enough as it is.

    I've experienced low level cronyism/corruption/misfeasance by a council that I couldn't prove without going to court. Would not want to give them the opportunity to increase their reach.

    Let the private parties sort out their own issues, using court if necessary.
     
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  7. Rob Legat - SBPL

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    The point is more perhaps that in granting development approval to subdivide, council will look to put conditions on the approval such as creating roadways or easements to assure access rights.
     
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  8. sammy01

    sammy01 Well-Known Member

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    Yup - Rob explained my situation better than I did.
     
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