Can you force your neighbour to give access to their property?

There are many reasons why you may need access to your neighbour's property, for example, when your builders need access for equipment or you may need to drive over part of your neighbour's property to reach your home. If the neighbour refuses, the law can force them to provide that access.

Legal proceedings to gain access

The Supreme Court can and will make orders forcing a property owner to give access. This is governed by s.88K of the Conveyancing Act. That section gives the court a wide power to grant a right over a property to allow neighbours to use or gain access of part of that property for legitimate purposes. These rights are known as “easements”. A right-of-way is an example of an easement.

The easement can be for a brief, limited period, for example, where you need access for a crane to lift something into your property. In other cases, the easement can be permanent, such as a right-of-way allowing you to drive over part of your neighbour’s property.

Usually, easements are granted subject to conditions, for example, an obligation on the person benefiting from the easement to pay for any damage caused by use of the easement.

The procedure is to file a summons in the Supreme Court, together with affidavit evidence showing why that access is needed. The case is then heard by Judge of the Supreme Court.

Are easements difficult to obtain?

Since ancient times, our law has  regarded a person’s home as their castle. Accordingly, you cannot obtain an easement under s.88K unless you have a very good reason. If you wish to install stormwater pipe running through your neighbour’s property, you need good evidence that there is no other practicable alternative. You will also need to show that you have tried to reach agreement with your neighbour, but they have refused your reasonable requests.

Legal costs

The easement is an interference with the right of the property owner to the full enjoyment of their property. Accordingly, the general principle is that the person seeking the easement pays their own legal costs as well as the costs of the person being asked to grant the easement. The courts can order the property owner to pay the costs if they have been totally unreasonable and obstructive. However, it is rare for the courts to move away from the principle that it is the person seeking the easement who should pay the costs.

For more details, please contact Tim Somerville or contact us on 9923 2321 enquiries@somervillelegal.com.au