NSW Right of carriageway easement

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now


16 October 2020

I'm hoping to get some advise on my rights over an unregistered right of carriageway easement that I am the dominant title holder.

25 years ago I purchased a block on land that was subdivided from land that the carriageway in question is part of. The sellers (a partnership of 3 people) of the land retained the carriageway (a strip of land about 20 metres wide and 120 metres long upon which a farm track had been constructed) to maintain access to a property (the "property") located behind us. Without this carriageway, the "property" would be landlocked (I should point out that the block that I purchased is not landlocked). Immediately after purchasing the land one of the sellers offered me the right to use this carriageway so that I could build my house further into my property to take advantage of a natural site for a house pad, and some better views of the valley. The offer was verbal only and no written agreement was made. The house was subsequently designed and built to take advantage of the carriageway in that the garage was positioned at the side of the house closest to the carriageway. The end result was that I use about 100 metres of the carriagway before turning off onto my block.

The "property" remained undeveloped (not even a shed) unoccupied (except for some cows that were agisted on it by a local farmer), and is like this even to this day. During this time I maintained (mower and brushercutter) and repaired (it regularly suffered damage due to water run-off in rain events) the carriageway at entirely my cost in time and money (grading was done on one occasion at my cost). I didn't mind as I was using it to access my property.

About 15 years ago the person that verbally offered me use of the carriageway died. No communication to/from the other 2 "sellers" was made by either parties.

Move forward to 1 year ago, and the 2 remaining "sellers" spent tens of thousands of dollars upgrading the carriageway (it's now basically an unsealed road). They even installed (at their cost) underground concrete pipes at my turn-off so that rainwater could flow without causing damage to my entry point. They then placed the "property" on the market, and asked me to stop using the carriageway. I replied I have an agreement with your former partner that gives me a right to use the carriageway. They begrudgingly relented, I continued to use the carriageway, and things remained quiet until now.

To this day the "property" remains unsold, however they are now asking me again to stop using the carriageway.

Where do I stand legally in this situation?

Does a verbal agreement made 25 years ago with someone who is not longer living give me any rights?

When the "property" is sold, what rights do I have with the new owner?

Any advice is greatly appreciated.

Kind regards,