TAS What legislation covers maintenance of rights of way?

Discussion in 'Property Law Forum' started by SmithTAS, 21 October 2019.

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  1. SmithTAS

    SmithTAS Member

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    I have an issue with a right of way on my property, I have the burden of easement and the house behind (a rental unfortunately) has the benefit of easement.

    The tenants have complained about potholes at the bottom of the sealed driveway, and their rental agent had them repaired when I was working away for five weeks and have now sent me a $440 bill!!

    I have searched and all indications on the net say I am not legally obliged to maintain the right of way but I can't find any actual legislation or case law - which I would like to put in my terse letter. Given I was not consulted and if I had been would have driven my ute 200m up the road and purchased $50 worth of road base and fixed it myself.... no way am I paying for a landscaper.

    Does anyone know what legislation would cover this in Tasmania???
     
  2. Rob Legat - SBPL

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    Not specifically Tasmania, but easements are a creature of contract law in terms of their rights and obligations. They will usually have in them somewhere who is responsible for the maintenance and upkeep of the easement area. Failing that you could run the old letting agent argument that the repairs were not urgent and you weren't contacted about them, so it's their cost and not yours.
     
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  3. SmithTAS

    SmithTAS Member

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    Thanks for that Rob. I've checked my contract and title from when I purchased the property in 2007 and there is nothing in it at all about maintenance - it only mentions I must allow access to the adjoining property. I really think the letting agent is trying it on. I'm responding with saying there is nothing in the sale contract or title deed requiring me to maintain it, and it is established in legal precedent and case law (Jones v Pritchard 1908). Then I'm saying they did not approach me and give me the opportunity to do the work myself (I own a ute and it could easily have been sorted with $50 worth of gravel and some cement dust), get my own quotes or require more than one (very expensive) quote so I do not feel morally obliged either.

    Will see how it goes but I am sick of the s**t from these bloody letting agents and the tenants. For example the tenants crashed into the rear fence and I just claimed it on my insurance because I just didn't want any issues with neighbours, didn't even ask them to pay the excess. Then they cut down trees on three different properties adjoining on the right of way because they didn't like how close they were to their 4WD - even though the trees were not on the r-o-w land and they cut them down a metre past the fence. To top it off they have three dogs and no fences or gate so the dogs run out when I'm in my garden and have a crack at me if I'm mowing the lawn in particular, I've actually been bitten twice because I didn't hear them coming over the mower. This bill from them has just sent me over the edge, I'm going to be reporting dogs to the council and anything they do that is untoward I'll be having a rant in the direction of the agent.

    Vent over. Lol.
     
  4. Rob Legat - SBPL

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    I suggest you actually get a copy of the easement document registered against the title (if you haven’t, it wasn’t clear from your post). The registered grant of easement document should contain the relevant terms of the parties’ rights and obligations.

    The contract to buy the land or copy of the title shouldn’t have the necessary information in them. That is, unless things are markedly different in Tasmania.
     
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  5. SmithTAS

    SmithTAS Member

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    Sorry for not making it clear - but I do have a copy of the easement registered on the title - and all it contains is the right to use the land to cross into the rear property. It has nothing at all about maintenance just "hereby allow named person and all heirs" etc right of way.
     
  6. Tripe

    Tripe Well-Known Member

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    In general, you have no obligation as the servient title holder to contribute to maintenance on the burden land, and would not need to pay the bill.

    however, you need to make sure there is no maintenance provisions for the Easment.

    check the schedules on your certificate of title, to find the easements reference numbers and then located the easment documents, these should of been part of your legals for your property purchase
     
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