Publications - Property and Development
But it's my land! Understanding Right of Way Easements
June 2019
Snapshot
A Right of Way Easement is a form of Easement annexed to land which grants a right to travel over a part of the landowner’s property. This right of way is usually granted to neighbouring landowners. The legal rights of the attached landowners to use and maintain the right of way may not always be clear.
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How do I know if there is an Easement on my land or my neighbour's land?
For many suburban properties in NSW a right of way may exist to the rear of properties which provides access from the street, or as a lane between two neighbouring properties. Sometimes, the right of way is hard to distinguish because the attached lands have changed ownership over the course of several years and the easement has fallen into disuse and become overgrown.
The Law refers to your land as the ‘servient land’ if you are the landowner of property containing the Right of Way and ‘dominant’ land if you are the landowner of land adjacent to the right of way which has been created for your use. In both cases, the right of way will usually be noted on the Certificate of Title as either ‘burdened’ in the case of the servient land, or ‘appurtenant’ if the title is for the dominant land.
What are my rights and obligations?
Usually a right of way will be created in accordance with a legal document which sets out the rights and use of the easement[1]. In some cases, the original document will confer rights on the servient and dominant landowners which may no longer able to be realised, or be broadly drafted which can lead to disputes between the landowners.
At common law, the dominant landowner has an implied right to enter the site of the servient land to use the easement for passage. They also have a common law right to enter the land to do work on the easement to do what is reasonably necessary to enjoy the right of way. This may involve repair and maintenance depending on the state of the easement. These rights are limited and the dominant landowner cannot cause reasonable interference with the servient land or undue inconvenience to the servient landholder [2].
This balancing of rights between landholders will depend on many factors such as the history, topography, nature and zoning of the land and what the dominant landowner can or cannot do to the servient land will need to be assessed on a case by case basis. In a notable example, the NSW Supreme Court[3] decided inter alia that the construction of a ramp proposed by the dominant landowner would unreasonably intrude on the rights of the servient landowner, partly in light of the expert evidence and local council regulations. In this case, the court ultimately ruled the easement be extinguished altogether.
Where can I find more information?
If you are unsure whether a right of way easement exists on your property or if you are allowed to enjoy the benefit of one, or if you are in a dispute with your neighbours about the rights afforded to you as a servient or dominant landholder, please contact us.
[1] They may also be created through implication after an established pattern of use over time through. These easements are called ‘prescriptive easements’.
[2] Bland v Levi [2000] NSWSC 16 [22].
[3] Marian Walker v Brian Bridgewood and Ors [2006] NSWSC149 [82].
A Right of Way Easement is a form of Easement annexed to land which grants a right to travel over a part of the landowner’s property. This right of way is usually granted to neighbouring landowners. The legal rights of the attached landowners to use and maintain the right of way may not always be clear.
___________________________________________________________________________________________________________________________________________
How do I know if there is an Easement on my land or my neighbour's land?
For many suburban properties in NSW a right of way may exist to the rear of properties which provides access from the street, or as a lane between two neighbouring properties. Sometimes, the right of way is hard to distinguish because the attached lands have changed ownership over the course of several years and the easement has fallen into disuse and become overgrown.
The Law refers to your land as the ‘servient land’ if you are the landowner of property containing the Right of Way and ‘dominant’ land if you are the landowner of land adjacent to the right of way which has been created for your use. In both cases, the right of way will usually be noted on the Certificate of Title as either ‘burdened’ in the case of the servient land, or ‘appurtenant’ if the title is for the dominant land.
What are my rights and obligations?
Usually a right of way will be created in accordance with a legal document which sets out the rights and use of the easement[1]. In some cases, the original document will confer rights on the servient and dominant landowners which may no longer able to be realised, or be broadly drafted which can lead to disputes between the landowners.
At common law, the dominant landowner has an implied right to enter the site of the servient land to use the easement for passage. They also have a common law right to enter the land to do work on the easement to do what is reasonably necessary to enjoy the right of way. This may involve repair and maintenance depending on the state of the easement. These rights are limited and the dominant landowner cannot cause reasonable interference with the servient land or undue inconvenience to the servient landholder [2].
This balancing of rights between landholders will depend on many factors such as the history, topography, nature and zoning of the land and what the dominant landowner can or cannot do to the servient land will need to be assessed on a case by case basis. In a notable example, the NSW Supreme Court[3] decided inter alia that the construction of a ramp proposed by the dominant landowner would unreasonably intrude on the rights of the servient landowner, partly in light of the expert evidence and local council regulations. In this case, the court ultimately ruled the easement be extinguished altogether.
Where can I find more information?
If you are unsure whether a right of way easement exists on your property or if you are allowed to enjoy the benefit of one, or if you are in a dispute with your neighbours about the rights afforded to you as a servient or dominant landholder, please contact us.
[1] They may also be created through implication after an established pattern of use over time through. These easements are called ‘prescriptive easements’.
[2] Bland v Levi [2000] NSWSC 16 [22].
[3] Marian Walker v Brian Bridgewood and Ors [2006] NSWSC149 [82].
