Right of Way NSW: Subdividing 1 benefited property into 2

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frankyC

Member
24 May 2021
2
0
1
Hello everyone, I'm hoping to get some help where upkeep and maintenance are not set out as our neighbour (benefited property) is looking to subdivide but we have an old title that doesn't define who is benefited by the burden and doesn't set out out who is responsible for maintaining the right of way etc. It simply states "Right of carriageway affecting the part of the land above described show so burdened in VOL 7876 FOL 155"

We are hoping to amicably create a maintenance agreement to add to the title however, I have a question about our obligations as the burdened party.

1. Our neighbour told us that we should pay for all maintenance and upkeep as we are the burdened party. Is this true (we use 60% of the right of way so expect to pay some but not all)?

2. Is fencing on both sides of the right of way typically taken into consideration in cost and maintenance (residential block)?

3. If my neighbour becomes problematic do I have any leverage/advantage? The neighbours have been nice so far but they have seen 2 lawyers about this so far and we are struggling to get money together for 1 visit as my husband can't work.

4. Is there anything else we should be concerned about? We haven't go any info on the utilities for example and there is no compensation for adding another house but I don't know if there should be really.

Extra info:

We are the burdened property and our benefited neighbour has lodged a DA to subdivide their property into 2 blocks.

Our neighbours have proposed the following:

Driveway repair/replacement to be split:
- equally between 3 properties

Cost of fencing between the burdened property and the right of way to be split:
- 50% paid by the burdened property (us)
- 25% paid by the existing benefited property
- 25% paid by the new benefited property

Cost of fencing running along the burdened property line (ie the fence running between our neighbour to the left and the fencing next to our house):
- Not covered in the proposed agreement

Anything thoughts, comments, suggestions are very much appreciated.

Thank you,
Cindy
 

Tripe

Well-Known Member
22 May 2017
220
13
619
It’s not 100% clear,

Are you the servient title holder ie: you own the land, where the easment is over?

And the neighbor is the Dominate title holder?
 

frankyC

Member
24 May 2021
2
0
1
Hello everyone, I'm hoping to get some help where upkeep and maintenance are not set out as our neighbour (benefited property) is looking to subdivide but we have an old title that doesn't define who is benefited by the burden and doesn't set out out who is responsible for maintaining the right of way etc. It simply states "Right of carriageway affecting the part of the land above described show so burdened in VOL 7876 FOL 155"

We are hoping to amicably create a maintenance agreement to add to the title however, I have a question about our obligations as the burdened party.

1. Our neighbour told us that we should pay for all maintenance and upkeep as we are the burdened party. Is this true (we use 60% of the right of way so expect to pay some but not all)?

2. Is fencing on both sides of the right of way typically taken into consideration in cost and maintenance (residential block)?

3. If my neighbour becomes problematic do I have any leverage/advantage? The neighbours have been nice so far but they have seen 2 lawyers about this so far and we are struggling to get money together for 1 visit as my husband can't work.

4. Is there anything else we should be concerned about? We haven't go any info on the utilities for example and there is no compensation for adding another house but I don't know if there should be really.

Extra info:

We are the burdened property and our benefited neighbour has lodged a DA to subdivide their property into 2 blocks.

Our neighbours have proposed the following:

Driveway repair/replacement to be split:
- equally between 3 properties

Cost of fencing between the burdened property and the right of way to be split:
- 50% paid by the burdened property (us)
- 25% paid by the existing benefited property
- 25% paid by the new benefited property

Cost of fencing running along the burdened property line (ie the fence running between our neighbour to the left and the fencing next to our house):
- Not covered in the proposed agreement

Anything thoughts, comments, suggestions are very much appreciated.

Thank you,
Cindy
It’s not 100% clear,

Are you the servient title holder ie: you own the land, where the easment is over?

And the neighbor is the Dominate title holder?
Thank you for replying. Yes, we are the servient title holder (we own the land) and our rear neighbour (battleaxe set up) is the dominant title holder and they have lodged a DA to subdivide their property. The new lot would be a dominant title holder too as they would access that property via the existing easement which would be extended through the second property.
 

Tripe

Well-Known Member
22 May 2017
220
13
619
Ok

You need to find out if there is any written conditions on the right of way ? Look under the schedules on your title Or get the neighbour to prove any written condition on the right of way


In general, as the servient title holder, you have zero obligations to maintain the right of way and the neighbour who is subdividing, has zero rights to enforce any maintenance conditions on you.

it’s your land, not his.

However, You can organise maintenance on the right of way and seek a reasonable pro rata share of costs from the dominant title holder.

The new land parcels, still have enjoyment of the right of way, as it applied to the larger block.

As for fencing, the neighbour can use, the dividing fences act, to get you to contribute to a new fence or repair a fence on any common boundaries to a standard of a “Sufficient fence” , by use of
“ A notice to fence”

If you disagree to this request , you can reply to the neighbour and say that
“The current fencing is sufficient and you won’t be contributing to any fencing costs”

However, the dividing fencing act or similar in your state would allow your neighbour the right to arbitration to settle any impass on the issue.

So, if the boundary fences are in good order and sufficient, you most likely have no obligation to contribute.

Further, if the neighbour does any repair or installs new fencing, with out using “ a notice to fence” or having you agreeing to pay a cost, you have zero obligations to contribute to the cost.
 
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