Hi we have a right of way that gives access to our neighbour behind us it has never been used . There are trees that are over 50 years old through the right of way can he still have access to it after all that time
TAS Right of way
- Thread starter melissabramich2607@gmail
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- right right of way
In Tasmania, this question can come up when a block changes hands.
In particular, when the new owner wants to do building works
(like building a new "shack" that is really a full on house)...
and the tradies want to cross your land rather than
drive an extra five minutes to get to the modern-built driveway.
Does the land have some other means of access?
Like, say, a driveway of its own, maybe built in (so-to-speak) modern times?
There are too many ifs and buts and unlesses and exceptions to say for sure.
So, to help us clarify....
First - does the ROW actually legally exist?
That is, is it shown on your Certificate of Title?
In Tasmania, many are unrecorded, and their existence is merely customary.
Second - No, he can't make you cut down the trees just because he wants a back gate of additional convenience.
Nor can he cut them down himself, without your agreement. Because they are on your land.
Further, the Council probably has Tree Preservation stuff in place.
By virtue of age and or size, those trees may be subject to that.
Which means that if you damage them outside of those rules,
then your at risk of committing an offence.
Lastly - Hard truth is, you'll need consult a specialist property lawyer
for case specified advice about an application
to have the easement lapsed for abandonment.
In particular, when the new owner wants to do building works
(like building a new "shack" that is really a full on house)...
and the tradies want to cross your land rather than
drive an extra five minutes to get to the modern-built driveway.
Why not?
Does the land have some other means of access?
Like, say, a driveway of its own, maybe built in (so-to-speak) modern times?
Always, automatically, and just because?
There are too many ifs and buts and unlesses and exceptions to say for sure.
So, to help us clarify....
First - does the ROW actually legally exist?
That is, is it shown on your Certificate of Title?
In Tasmania, many are unrecorded, and their existence is merely customary.
Second - No, he can't make you cut down the trees just because he wants a back gate of additional convenience.
Nor can he cut them down himself, without your agreement. Because they are on your land.
Further, the Council probably has Tree Preservation stuff in place.
By virtue of age and or size, those trees may be subject to that.
Which means that if you damage them outside of those rules,
then your at risk of committing an offence.
Lastly - Hard truth is, you'll need consult a specialist property lawyer
for case specified advice about an application
to have the easement lapsed for abandonment.
Thanks for your reply Tim yes the ROW is on the title it goes the full length of our property and yes he does just Want it for convenience, he has his own driveway in another street. The ROW originally went straight through the property but was deleted and re created in 2005 would this be the date we have to go by or, the date if the original right of way so confusing. We definitely will get intouch with a lawyer, just wanted to try and find out if we have any rights at all. Thank you
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