Hi all,
I have an interesting situation for your thoughts.
Situation:
Current Short Term Actions:
Interpretation.
It is my understanding from the Right of Way Easement rights, that... :
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.
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
- 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)
- 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)
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
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.