You have recently bought a property, or some land you noticed is subject to an easement. This easement may be referred to as a right of carriageway… but what is that?
The rules and language used in property contracts can be somewhat confusing. In simpler terms, a right of carriageway often refers to a shared driveway.
The purpose of this article is to discuss the most commonly asked questions regarding shared driveway rules in Australia.
Easements & Shared Driveway Rules Australia
Before going into the topic of shared driveway rules in Australia, it is vital first to understand that a shared driveway in Australia is known as an ‘easement’ and can be further sub-categorised as a right of carriageway.
So… what is an easement?
An easement is an interest attached to a parcel of land that gives someone else who does not own the land the right to use a part of the land for a particular reason.
Let’s use an example with a shared driveway to make this easier to understand:
Person A owns the property and land of a shared driveway. Person A is known as the servient tenement.
Person B owns some property that can only be accessed by using Person A’s driveway. Person B is known as the dominant tenement. They do not have a share of ownership in Person A’s driveway but can use it to access and leave their property.
Who Maintains The Driveway Involving The Right Of Carriageway?
A common question that comes up concerning shared driveway rules in Australia is who is responsible for maintaining the driveway in question if multiple occupants share it.
The nature of easements are quite complex, and there is no fixed answer for this question as each case can be different. The obligations to maintain and pay for repair costs of the shared driveway are generally set out in the grant of easement document.
The answer to the question above largely depends on the way the easement was created. In some scenarios, the lot owner will be responsible for maintaining the driveway. This will be specified in the terms of easement. On the other hand, this obligation could also fall entirely on the dominant tenement. In fact, it is normal practice for the dominant tenement to maintain the driveway.
Lastly, it is also common for the two parties to enter into agreements about their obligations to maintain the driveway. Both parties can make financial contributions for maintenance of the driveway. Whether these contributions are made equally, again, depends on the kind of arrangements they have.
If the lot-owner is planning to make claims for shared costs of the driveway, it is important for them to seek legal advice to ensure that they make these claims lawfully.
Shared Driveway Rules Australia FAQs
Can I Park My Car On The Driveway If It Is My Property? – The answer to this depends, really.
Although the driveway may belong to you, you may not be allowed to park your car on the driveway if it is blocking your neighbours’ access in and out of their property.
Who has to pay for repairs? – Generally speaking, the landowner will have to pay for any repair costs to the driveway. However, sometimes the terms of the easement will specify that the costs need to be shared. Regardless of either of these, you can always informally ask your neighbours to chip in for such costs.
Can the dominant tenement use the driveway for other reasons? – Typically, the terms of the easement will specify that if you are not the landowner, you can only use the driveway to leave and access your property.
Technically, this means that if your children are playing on the driveway, or you are on the driveway for other reasons, you may be trespassing. This is because the driveway is considered private property for reasons outside of the easement terms.
Does the owner of the property get compensated? – Compensation may not be possible for a right of carriageway. However, the matter of payment is open for discussion amongst the property owner and other parties.
Does an easement increase or decrease the value of my property? In some circumstances, an easement may decrease a property’s value due to its restrictions on the owner. This is evident by a landowner who may not be permitted to park their car on their driveway under shared driveway rules in Australia as to not restrict neighbours accessing their land. If you are party benefiting from the easement, this may increase your property value as it is an added benefit.
Can you remove easement rights? – An easement may be removed if all the relevant parties mutually agree to its removal. This should be formally documented by either a registered conveyancer or solicitor to make it legally official. Alternatively, the Court may also remove an easement if it can be shown that it is not required any longer.
Importance of Seeking Legal Advice
When discussing matters such as ‘shared driveway rules Australia’, it is essential to note that not every single easement is the same, so the rules around what may or may not be allowed on your shared driveway will depend on the terms of the easement.
If you have any questions about your shared driveway rules or another easement, please feel free to contact our team of friendly and experienced property lawyers. We are always happy to help.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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