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ClickLaw – Who Pays for the Maintenance of a Right of Way?

Property developers are without doubt a creative bunch of people. Many that we here at ClickLaw work with are exceptionally astute at putting together what can be a complicated jigsaw puzzle of land pieces. When a developer subdivides (and when I say developer I mean anything from a Ma and Pa two lot subdivision to a global behemoth property player), with the assistance of a team of colleagues in the surveying, engineering, town planning and of course legal industry they are able to create building sites and lots where it would previously have seemed impossible.

Of particular interest in the creation of these subdivisions is the ability for people to access blocks or lots of land where there is no specific road frontage. One way of providing such access is to define the boundaries of the lot in the traditional “battle axe” shape. An alternative is to create what is known as an easement for access or right of carriage way. In essence, such a right allows the owners, invitees etc of the rear block to pass over the front block (in a defined area) to gain access to the rear block.

During the conveyancing process (in NSW), we are often required to advise on the maintenance provisions of such a right of access. Traditionally, many such easements did not address who had the obligation to maintain the easement. As such it was commonly held that the owner of the property that had granted the right of access did not have an obligation to repair or maintain. That said, the owner was not permitted to do anything that would obstruct the right of the other owner exercising its rights pursuant to the easement.

More recently, the obligations to maintain and repair such an easement as a right of carriageway are often drafted into the easement itself and clearly allocate the requirements of different parties to maintain and repair the site of an easement.

Consequently, if you are assessing whether you should purchase a property, as part of the conveyancing process, it is imperative that you understand your rights in relation to any easements noted on the title to your property. An experienced property lawyer will be able to advise you in relation to such easements. In the alternative, if you are thinking of including easements in your subdivision, it is important to address maintenance and repair provisions to enable potential purchasers to have a degree of certainty over the future obligations should they purchase a lot in the subdivision.

If you have any queries, please do not hesitate to contact one of the experienced property lawyers here at ClickLaw who would be happy to assist.

John Kettle
Solicitor Director
T (02) 8005 3955
F (02) 8006 5275
clicklaw.com.au

PO Box 270 Bowral NSW 2576
DX 4977 Bowral

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