Easements and access
An easement is a right to use part of someone else’s land for a particular purpose — a driveway, a path, a drainage line. It runs with the land, so it binds whoever owns it next, and it is not something a new owner can simply decide to end.
General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.
Read the instrument before the argument
Easement disputes divide almost perfectly into two kinds. In the first, an easement exists and somebody is interfering with it — a gate, a fence, a parked car, a new garden bed across a right of carriageway. In the second, there is no easement and somebody needs access anyway. They are answered in completely different ways, so establishing which one you have is the first step.
If an easement exists, everything turns on the terms of the instrument recorded on the title. An easement is a right to use land for a stated purpose. Its terms say what the purpose is, what area it covers, who may use it, and often who is to maintain and repair it. People argue for months about what is fair when the document already says what is permitted. Obtain it first.
The terms also mark the limit in the other direction. A right of carriageway is a right to pass and repass. It is generally not a right to park on the burdened land, to store things there, or to widen it. Owners of the benefited land sometimes come away disappointed for exactly this reason, and it is better to know before the letter goes out.
Where there is no easement, the Access to Neighbouring Land Act 2000 (NSW) is often the answer people are actually looking for. It allows a court to make an access order permitting access to adjoining land to carry out work, and it requires notice to be given to the owner of the land and to others who may be affected. It is designed for the neighbour who simply will not let you in to repair your own wall.
What the work actually is
Finding and reading the instrument
Obtaining the title, the registered plan and the dealing that created the easement, and telling you plainly what it permits, over what area, and who has to maintain it. This resolves a surprising proportion of these disputes on its own.
Dealing with an obstruction
Where an easement is being blocked, correspondence that sets out the right, encloses the instrument and asks for the obstruction to be removed. Where that does not work, advice on what a court can order and whether it is proportionate.
Defending against an over-reach
If a neighbour is asserting a right that their easement does not actually give them, the answer is usually in the same document. Being clear about the limits early stops the use expanding by habit.
Creating, varying or releasing one
Where the practical answer is a new easement, or a change to an existing one, advice on how that is done properly and registered, so it does not fall over when either property is sold.
Questions people ask first
How do I find out whether an easement exists?
Start with the title for the land and the registered plan. An easement is normally recorded there, and the dealing that created it sets out its terms. Your conveyancer or solicitor can obtain these. Do not rely on what a previous owner or a neighbour says about what was agreed years ago.
My neighbour bought the house and says the old arrangement is finished.
If it is a registered easement, they are generally wrong. An easement runs with the land, so a new owner takes the property subject to it whether or not they knew about it. If the arrangement was only ever an informal permission rather than a registered easement, the position is quite different — which is why establishing what you actually have comes first.
Can I park on the right of way?
Usually not. A right of carriageway is ordinarily a right to pass and repass, not a right to park, store or obstruct. That cuts both ways: it also means your neighbour should not be parking across it. The terms of your particular easement govern, so read them rather than relying on the general rule.
Who pays to maintain the driveway?
Frequently the instrument says, and that is the answer. Where it says nothing, the position depends on the nature of the easement and on who is using it and for what. It is a common source of dispute and a very common thing to resolve by a short written agreement about contributions, which is far cheaper than arguing about it each time the surface breaks up.
They have blocked the access completely.
That is a real wrong and it has remedies, including orders to remove the obstruction. Before anything else, photograph it with dates, and get the instrument. A letter that encloses the registered easement and states what it permits resolves a great many obstructions without proceedings, because the other side often simply did not know.
There is no easement but I need to get onto their land to fix my wall.
That is what the Access to Neighbouring Land Act 2000 (NSW) is for. It allows a court to make a neighbouring land access order permitting access to carry out work on your own land, and notice must be given to the owner and to others who may be affected. Ask in writing first and keep the record of asking.
Can I get an easement if my neighbour will not agree?
There is provision in the Conveyancing Act 1919 for a court to impose an easement over land where it is reasonably necessary for the effective use or development of other land, subject to conditions the Act sets. It is not a formality and it is not cheap, so it is worth advice on prospects before you start. Very often a negotiated easement, properly registered, gets you the same place sooner.
What to have ready
Almost every easement question is answered by a document that already exists. Getting hold of it is the first job.
- Your title documents and the registered plan for the land.
- The instrument or dealing that created the easement, if you have it.
- Photographs of the access and of anything obstructing it, with dates.
- How the access has actually been used, and for how long.
- Any written agreement with the neighbour or with a previous owner.
- Any correspondence about the access, and when it started.
- What work you need to do, if you are seeking access to carry out repairs.
- Whether either property has been sold or subdivided recently.