TAS Right of Way Easement (Long term use of alternative track)

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RichardB

Member
17 January 2021
4
0
1
Hi all,

I have an interesting situation for your thoughts.

Situation:
  • We own and live on a property that enjoys a right of way easement to access it via another block (no surprises so far)
  • We moved here just over 2 years ago after completing a 2 year house build (only mentioned for a timeframe perspective)
  • The owner of the land with the easement on it, already had a track across the land in use for at least 10 years prior to us moving there and has been using their land for a number of decades
  • The track they created may or may not be entirely within the Right of Way easement as per the title although it is the only track across the land (survey required to confirm)
  • The easement was created on their land when it was subdivided around the year 2000 (no surprises here but at least tells us when)
  • The point at which we access our land may or may not be within that ROW on the Title
Recent action:
  • The owner of that land has recently blocked the previously used access to our land such that we now need to use an old track and do a 3 point turn to get onto the track through his land. This now many getting trucks and other larger vehicles to our property very difficult and their 3 point turns may damage his land and/or vegetation (this would seem to be a problem in the context of being a substantial interruption to the enjoyment of a Right of Way easement - IF it is actually on the easement in the first place)
Assumption:
  • Just because an existing track has been in use for a decade or so, does that become the accepted replacement of the Right of Way easement? (I am presuming that it does NOT and that the Easement on the Title remains the correct legal placement of where our access track should be, irrespective of where they may also choose to place a track on their land)
  • Because the current access point and track may or may not be within the Easement on the Title, the use of the "substantial interruption to the enjoyment of a ROW" may or may not apply

Current Short Term Actions:
  • Survey! Given the lack of certainty around the actual Right of Way easement as per the Title, we will get a surveyor out to correctly peg the ROW (Let's operate on the facts once they are determined)
  • Review! It is entirely possible that we will discover that he has actually built his stand alone garage across part of the real ROW easement (Gives us some insight into why they didn't want us to get a survey in the first place)
So, what am I actually asking?

Interpretation.

It is my understanding from the Right of Way Easement rights, that... :
  • We could construct and maintain (to whatever level of quality we desire), at our cost (no shared implications for a ROW easement), a suitable access road within the Right of Way easement
  • That by way of courtesy, we would advise that we are going to do the construction and provide them an appropriate amount of time to remove any inappropriately located construction (What is an appropriate amount of time for such works?)
  • That failure by them to remove any construction within a mutually agreed timeframe would mean that these can be removed using no more force than is absolutely necessary with care and no responsibility
  • That any trees or other natural items within that ROW may be removed or adjusted to ensure that a suitable road can be constructed
  • That I do not need his permission, specifically, to conduct these works
My preference would be to have a proper road within the ROW easement to avoid any repeats of their behaviour.
Another possibility is that the ROW easement on the Title is moved to encompass the current track location which would necessitate the reinstatement of the recently blocked access point.

Many thanks for any and all thoughts.

Either way, my first step will be a proper survey to determine the facts.
 

Docupedia

Well-Known Member
7 October 2020
378
54
794
The first two steps in any easement consideration are:
1. What are the terms of the easement - review the grant document and see exactly what rights and responsibilities are created (in addition to any standard statutory ones); and
2. Ascertain the exact situation of the easement - via survey as you mentioned.

There‘s relatively little you can do in a meaningful way until those steps are done. Easements are a contractual creature at heart, and like any fundamental contract you need to know its terms before you can enforce it.
 

RichardB

Member
17 January 2021
4
0
1
Two excellent points. Thank you for the fast reply as well.

Yesterday I acquired the Schedule of Easements from LIST to review these aspects.

The 12m wide Right of Carriageway over the Right of Way (private) and Power Easement are spelled out there.

The survey will confirm the exact location of these aspects.

I am posing two options to the land owners:
* I construct a road within the easement (which may involve considerable works impacting them) as per the usual way this would get done
* We agree to move the easement on the title to cover the track that they had put in themselves (to me, the clearly cheaper and more logical permanent solution to the situation)

If they take up option B then the currently blocked access point will be unblocked as it would become the correct edge of the border.

What is interesting is that someone has also pointed out that these owners may have also built part of their road on our land by adjusting the border pegs. This will get dealt with separately.

I was mostly interested in, if they chose the first option, what parameters I need to reasonably operate under to move tanks and garage infrastructure that they feel that they may have knowingly built on the easement in the past.
I am hopeful, as always, for their compliance in the matter but humans are not always rational.
 

RichardB

Member
17 January 2021
4
0
1
The survey confirmed that the existing track is on the easement even though they had been saying for years that it wasn't.
It also confirmed that he had blocked 8 out of the 12 meters of the right of way at the border crossing so I took that down.
Since then they have issued a letter with 11 irrational demands in it that I am in the process of dismissing.
I'll be getting them to pay for the survey and the legal costs during this ridiculous encounter.
Since I proved that they illegally blocked the easement, I should have reasonable grounds for that at least.
What a waste of time.
 

Tripe

Well-Known Member
22 May 2017
229
14
619
Slow down a little !!!!

you may have a 12m wide easment, but you do not control all that width.

If you have a 4 m wide access, at the boundary, that most likely would be reasonable , however a 12m wide access would not be reasonable and would most likely be an excessive burden to the land owner.
 

RichardB

Member
17 January 2021
4
0
1
Hi Tripe!
Fair comment although these people have a decades long history of making irrational demands and having suppliers refused to service them more than once. We are just the latest in a very long list of people.
In the case of the 4 meters that was left, it goes straight into a bunch of very large and tall trees so it would be hard to demonstrate how reasonable that access option would have been.
I think that the 12 meter easement was created as a somewhat proportional sort of space since the track meanders through that width to avoid certain natural features across the 124 acres.
Thanks for the perspective though as these all help to shape the communications.