NSW Unused Right of Way Dispute

[Nikki McKay]

Hi
I have a right of way over my block that goes from the back fence to the middle of the yard. 6ft is in my block and 3 ft is in my neighbours block. There is no access to this right of way as the blocks behind us are built in and the site plan does not show any access roads to the Right of Way. I have been to the lawyers to apply to have the Right of Way removed from my block, however my neighbour will not agree as he believes that when I rip down an old shed that he will be able to access the Right of Way via my front driveway. He also has an old shed over the Right of Way at the back of the yard.
He also believes that I will have to remove the dividing fence between my yard and his yard from my front gate when I remove the shed that is currently on the Right of Way in the middle of my yard.
My lawyer has stated that I have to go to the Federal Court to have the Right of Way removed as my neighbour will not sign the paperwork. I am just wondering if there are any other options that I have as this is causing me a lot of stress over something that should not exist anymore.
Thanks in advance

 

[Rod]

If nothing can be solved through negotiations then court is the only other way to alter property rights.

 

[Tripe]

It’s a bit hard to visualise your scenario

But in general, the easment can only be extinguished by the consent of both the Servient and dominate title holders.

Otherwise you will need to go to court, but going to court with an argument of “ you don’t want it on you land anymore” will carry very little wheight.

You will need to prove the dominant title holder, has abandoned the easment, or the dominate title holder has allowed the easment to be in a state, that it cannot be used in the manner of the wording of the easment.

 

[Tripe]

Or you can offer to buy the easment out.

Offer the neighbours some cash, and they may majically decide, that the easment is not that important after all.

 

[Scruff]

Isn't an easement supposed to be for the purpose of providing access to something? If that's the case, then why and how are there sheds (and if I'm reading this right, also a fence) on it in the first place?

I admit that I don't understand this stuff, but the way I see it is like this:
1. keep your shed and fence exactly where they are (for now)
2. take photos of everything (sheds, fence, anything else relevant)
3. apply to the court or whoever to have the easement agreement anulled on the grounds that the easement has been abandoned; does not; and can not possibly in the future, serve it's intended purpose
4. tear down your shed or do whatever else you want to do.

I don't know if it's that simple, but if the easement is not being used and there are sheds and/or fences on it, then it has clearly been abandoned (if that's the right term), and I don't see how there can possibly be any valid argument for keeping it.

Observation: Is it just me, or has there been an unusually high number of questions lately about easements? I think there must be something in the water!

 

[Rob Legat - SBPL]

Scruff - easements can be for a number of reasons, not just right of way. Common examples are to run drains and sewers.

Nikki - there’s not enough information to properly understand what is going on here. First, make sure of its terms. The devil with easements is in the details. Who has the benefit of the easement? Unless it’s possibly a shared easement, I doubt it would be your neighbour’s unless there is some peculiarity in NSW law, as you generally can’t grant an easement over your own property to yourself - it would ‘merge’ (disappear).

Unless your neighbour has been granted rights under the easement, they have no right to use it. Easements are specific grants of right, not a general use for anybody (unless termed that way).

The next thing is that unless the easement extends to a neutral point of entry or one that your neighbour owns, assuming they do have rights, they can’t access and use it. For example, they can’t merrily trot across your driveway and through your property (i.e. non-easement land) to get to the easement.

Lastly, and again unless there’s some peculiarity in NSW law I’m not aware of, it wouldn’t be an application to the Federal Court. They don’t have jurisdiction over purely state matters, and private land is a state matter.