NSW Right of Carriageway Easement - Are We Obligated to Contribute?

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18 September 2017
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Our 40 acres is ‘burdened’ with a 10metre Right of Carriageway Easement. Our property with this Right of Way enters & exits onto a public road. Four other properties ‘benefit’ or use this Right of Way to access their farms.

ROW was a gravel road when we purchased the lot from a 3 lot subdivision in 2003 occasionally graded since purchasing, with us & other landowners contributing to the cost which was minimal.

Middle 2016, 4 neighbors insisted road be resurfaced to bitumen as the dust was affecting crops .
we didn’t want bitumen, but ended up giving in, with resurfacing occurring at a total cost of around $60,000. (Quote was organized by other land owners)

My questions:

1) Are we under legal obligation to upgrade & contribute?
2) Are both "Burdened" & "Benefited" landowners required to share cost of maintenance to ROW even if it was still gravel?


Thank you
 

Rod

Lawyer
LawTap Verified
27 May 2014
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Were any of the neighbours complaining about dust 'benefited lot owners'?

They may have a nuisance claim and who that is against might well depend on the wording of the easement as to who is responsible for maintenance.

Many factors need to be looked at, including for instance, the number of unsealed roads in the vicinity and your agreement to have the road resurfaced. Suspect you need legal advice to get accurate answers to your questions.
 

Tripe

Well-Known Member
22 May 2017
208
13
619
Hi Janelle

I understand that your the are servient title holder and 4 other people have dominate titles of right of carriage easements over your land?

You need to look at the wording on your property title for any easement roadway maintenance obligations.

In general, the land owner has no obligation to maintain a right of way easement, its up to the dominant title holders to maintain the right of carriage road surface. However, if you use the road as well, then it is perfectly reasonable to be asked to contribute to a part share of road maintenance.

You have zero obligation to contribute to the laying of bitumen, if your current gravel road allows your neighbours to use the road to safely access their properties. If they want bitumen, you don't have any obligations to pay the extra cost to upgrade the road to bitumen.
 
18 September 2017
2
0
1
Were any of the neighbours complaining about dust 'benefited lot owners'?

They may have a nuisance claim and who that is against might well depend on the wording of the easement as to who is responsible for maintenance.

Many factors need to be looked at, including for instance, the number of unsealed roads in the vicinity and your agreement to have the road resurfaced. Suspect you need legal advice to get accurate answers to your questions.
Hi Janelle

I understand that your the are servient title holder and 4 other people have dominate titles of right of carriage easements over your land?

You need to look at the wording on your property title for any easement roadway maintenance obligations.



In general, the land owner has no obligation to maintain a right of way easement, its up to the dominant title holders to maintain the right of carriage road surface. However, if you use the road as well, then it is perfectly reasonable to be asked to contribute to a part share of road maintenance.

You have zero obligation to contribute to the laying of bitumen, if your current gravel road allows your neighbours to use the road to safely access their properties. If they want bitumen, you don't have any obligations to pay the extra cost to upgrade the road to bitumen.
I greatly appreciate the input. ' Terms of easements & restrictions...' see no mention of maintenance. There's a schedule relating to no fencing expenses, etc., for the original developer.

Our Lot is Burdened. 1 lot is Benefited. 2 other land parcels commence at the end of our property boundary with access on this ROW. There is also 1 land parcel opposite our property, with owners using first half of the ROW to access the back end of their farm, but they have main road frontage for access to that property as well.
 

Tripe

Well-Known Member
22 May 2017
208
13
619
That's interesting, your title should list all the other property owners who have a right of carriage over your land.

Maybe only one neighbour lot1 has a right of carriage?

Do the other neighbors have right of carriage easements ? Or are they using the road illegally?