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Legalise your access right now (June 2024)

Last month in our article ‘Know your Boundaries’, we talked about boundary fences having been moved over the years on a handshake agreement.  We also talked about vehicular access sometimes being across a neighbour’s land.  This has raised some interest and it seems that it is not uncommon. 

Similar to boundary fences being moved for convenience, access rights are often agreed upon with a handshake. All is fine at the outset, especially where the neighbours are relatives or good friends, but as time moves on and land is sold and purchased by others, those original relationships no longer exist.

Access created in such a casual way is indeed far from a legal right of way (ROW).  It is no more than a neighbourly good deed that can be withdrawn on a whim.

The crunch often comes when there is a need for maintenance, or perhaps you want to use such access for a subdivision of your property.  If it is not legal, it is simply not legal and you don’t have any comeback on the owner of the land to allow you permanent access over their property to yours.  There may be an exception where you are denied physical access to your land through some natural process involving land instability or erosion, or your title was deficient denying you access.  In such a case,  the Courts may make a ruling.

Back to the practicalities of legalising your current access.  If your handshaking neighbour is still around and you are regularly using the access over their property, then now is the right time to legalise that deal and have a ROW Easement registered over their title.  You may need to sweeten the deal with a few loads of metal or a coat of tar seal, but often the convenience and ability to use that access for future development of your property will outweigh any costs. 

If you are involved in a historical access debacle, the road ahead will be less clear.  You should begin with a casual discussion to see if there is any desire to legalise the situation.  If you are not on good terms or they are reluctant to grant a legal ROW then you will need to up the ante with your offer of compensation.

You need council approval to register a ROW on both titles and it is unusual for approval to be denied.  However, there may be a construction upgrade necessary.  A local licenced cadastral surveyor will need to survey the alignment and provide a plan of the ROW. Easements for other purposes such as power and water supply require the preparation of a survey plan but do not require council approval.  Please feel free give us a call discuss any access challenges that you are faced with.  We’ll be happy to help.