Most people believe that their property belongs to them and that they do not have to allow anyone else to cross over it. And while this is often true, it isn't always the case. There are some instances where you might have to consider, and even capitulate, to allowing neighbours or others to cross over a piece of your property.
This situation in NSW is controlled by the Conveyancing Act of 1919, commonly known as section 88K. This section of the law allows for a person who needs to cross your land, via an easement, to make an application to the courts to do exactly that. However, before you and a neighbour arrive at such an impasse, it is possible to circumvent the court system by working the situation out amongst yourselves. And, it is advisable that you do so because the Court will look to your willingness to be reasonable under the circumstances as one of the factors in their decision making process.
First the person needing the easement must be able to show the following;
- The easement is reasonably necessary for them to use their land or to gain access to their property
- The burden on the landowner is limited and, if necessary, any damage resulting from the increased use could be cured via some form of compensation
- The parties involved have made a reasonable attempt to come to some agreement over the additional use of the land
Obviously, there can be a lot of interpretation surrounding the word "reasonable" when it comes to defining the requested use of the land. In the case of the use of the land, reasonable is defined as;
- The easement would allow the other party access to their own property which cannot be garnered any other way or prevents an undue burden on accessing the land via another method
- The easement would not cause undue damage to the property; meaning that while there might be some additional wear and tear on the easement area, the property itself would not be significantly harmed or devalued by the use
- The easement is limited to its particular use and would not give excessive access to the entitled party
- The restrictions of use ie: day/time etc still promote the proper use of the passing over the land
- The use proposed is consistent with public/personal needs
The actions of the parties, prior to filing an application for an easement, will also be a significant factor the Court will consider. When the Court looks to the actions of the parties, then reasonableness is defined as the following;
- Did the person requesting access give notice to the landowner of the need?
- Did the person requesting access give the landowner and fair and accurate description of the type of easement needed?
- Did the owner have an opportunity to review the proposed easement and seek advice or assistance in making their decision?
- Did the parties negotiate in good faith and still were unable to come to an agreeable compromise?
In the event that the Court Orders the easement, the Court also must clarify the following;
- A description of the easement to include
- The physical parameters of the easement
- The actual use granted
- The restrictions on the use granted
- Calculate the compensation to be awarded, if any, to the property owner over which the easement has been granted. It is important to note that this calculation will only take into account the burden on the landowner, not the benefit of the holder of the easement ie: loss of privacy, additional wear and tear to the land
- To determine that no compensation is required due to special circumstances
If you find yourself in need of an easement over someone else's property, for the use and enjoyment of your own, it is always best to make a good faith effort to work it out with your neighbour. Once you do so, it is easy to codify your agreement in a writing so that everyone is aware of the nature of the terms and their enforcement is easy and reliable. Such compromise will go a long way in ensuring a good relationship with your neighbour(s) and enhance everyone's enjoyment of their property.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.