Easements, access, right of way and s88K

Easements are a right to travel over a property, given by that owner in favour of another. What sort of right? Easements have included driveways for access to blocks that don’t have appropriate access, to allow storm water runoff, and even to allow access to stairs (in that case, a couple of very steep blocks at Seaforth facing the harbour).

The question is, if you need that access but your neighbour won’t co-operate and allow it, what then?

You can apply to the Court for an Order creating an easement. There are a number of requirements along the way before the Court will say yes. Obviously, you must first contact your neighbour and ask for the easement, and you must offer compensation that is reasonable in the circumstances. If you’re only using a small part of his land then compensation may not be much, but if you need to run a driveway all the way down one side of his property, then compensation will be very different. Typically, the Courts have looked at the value of land and used a cost per square metre assessment. They may also take into account the increase in value of your property as part of the assessment. But the big principle is how badly affected is the person who has to grant the easement.

Another issue to consider is whether the easement is “reasonably necessary”. This isn’t an absolute test, it is not a yes/no question, but one of degree. The Seaforth case mentioned above didn’t “need” the easement, but it made things a lot simpler and easier. It is also a question of how much impact it has on the party granting the easement. It is not however a guarantee that you will be successful.

Another case involved the creation of an easement to drain extra storm water from their bock. The people seeking the easement had been allowed to create a dual occupancy on their block, but it meant more storm water. The Court allowed them to create an easement over their neighbour’s property to allow them to drain off that storm water. There had already been an easement in place for the benefit of other neighbours, and so this was reasonable.

Of course, easements can also be created to benefit large scale developments, and the same principles apply.

If you have a situation where access to your property is an issue, or if your neighbour wants access for some reason, please give us a call to discuss your options.

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