Just because you do, doesn't mean you can!
Oct 09, 2019Just because you’ve always done it doesn’t mean you’re actually allowed to.
When talking property, you would think that ownership and the right to access land would be clear cut, but quite often that’s not the case.
Who owns the laneway that cuts between your house and the neighbour’s house?
What about the track that everyone uses as a short cut?
Just because people have been using the track or the lane way for as long as anyone can remember, does not necessarily mean that the land is for public use, or even for use by the neighbouring properties.
A recent NSW Supreme Court Decision dealt with just such a situation involving two parcels of land in the city. In the case of The Owners – Strata Plan No 61233 v Arcidiacono; The Owners – Strata Plan No 17719 v Arcidiacono a passageway and dock running between buildings located at 65 and 71 York Street and along the back of buildings on Clarence Street were the subject of a dispute regarding access.
The two lots formed an “L” shaped passageway and dock area and were the only vehicular access to the rear of the buildings on Clarence Street and York Street. The land was owned by the defendants who installed a gate at the opening of the passageway on York Street preventing access. The Owners Corporation for two strata buildings that backed onto the passageway argued that they had the right to use the land to access the rear of their buildings because they have done so for many years and there was no other access.
The plaintiffs sought that a right of carriageway be granted over the passageway and the dock allowing them access. They argued this on two fronts:
- That they had an existing right of carriageway over the land however it was omitted from the register when the Title for the land was brought over from Old System Title to the Torrens system (Easement by prescription).
- That access was necessary for the effective use of the land and that an easement for a right of carriageway should be imposed under section 88K of the Conveyancing Act 1919 (NSW).
The Court decided that the York Street building had the benefit of an easement by prescription for a right of carriageway over the dock. As the building already has a right of way recorded on title over the passageway the Court stated there was no need to grant a right of carriageway over the passageway as well.
For the Clarence Street building, the Court imposed a prescriptive easement for a right of carriageway over both the dock and the passageway because there was sufficient evidence showing the continued use by the building since 1981.
In summary, two buildings used the passageway and dock for access and had done so for many years, despite the fact that neither had a legal right of carriageway over the land. This resulted in each building having to apply to the Court to impose such a right. The Court ultimately granted rights of carriageway to both buildings, albeit on different grounds and for different reasons.
Contact the Shire Legal team if you have any questions.
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