Shared driveway without easement

[Scott M]

Hi all, our neighbor the local council is considering selling their property into private hands. The only vehicle access into that property runs across our lot & there is no easement. Should I tidy this up before the council launches into a sale process? The current situation is how it was when I bought the property & has been that way for many years prior. There is a paper road running up the side of both lots but there is a reserve & creek in the way, would by very expensive, difficult to build an alternate access to the current council lot & besides I dont want to be a complete arse about it. We knew the previous tenants of the council land & what their likely vehicle movements would be & we had a signed agreement on maintenance / security that supported their original lease application. Our property is our holiday home & we hope to retire there so it would be awful if the new neighbor were to be potentially a commercial operation or just busy folk with non stop traffic across one cnr of our lot. Instead of an easement, would we better off altering the boundary? There is a very small green space on the other side of the shared driveway that is in our lot. Your help & advise would be appreciated. regards

[sidinz]

Someone posted a while back about customary rights. You may want to look into that if it's been a longstanding arrangement. They may have rights.
If they do, you may be better off negotiating something favorable with the council before they sell. You have no idea how clued-up or litigious the purchaser might be.

[Scott M]

Thanks, yes I think that might be wise. For the ordinary purchaser, an easement may give them some peace of mind that we wearnt going to fence the remaining edge of our lot or if we did we would have to accommodate through traffic with two new gates (the existing driveway gate is swung on council land) The whole setup seems to have been a "she'll be right" attitude which was probably fine 20 years ago

[Ivan McIntosh]

I suspect Council would be quite amenable to working something out, not least because having some certainty over access should help their sale process. I don't know anything about the property you're talking of, but if it's subdivisible I think redoing the boundary to keep vehicle access off the re-boundaried land would be a valuable task.

Customary rights, to the extent that they could be asserted, which isn't a given in the first place, probably wouldn't support a huge increase in traffic because such an increase wouldn't be....customary. But why have the argument and uncertainty if you don't have to?

[Scott M]

thanks for advise. yes if i was in the purchaser position, clarity would certainly be nice & perhaps influence price.

[RollingCloud]

I would be surprised that Council would consider selling the lot without consideration to access. Why don't you get on the phone and ring them?

If a paper road services the lot then really they don't have to do anything else but the practicality of access would make the block less attractive to a buyer.

However you need to be clear with Council that the access through your property ends.

If you do want to see if the Council is open to an easement you are entitled to compensation for that easement. Council would normally get a valuer to assess its worth and an agreement would be entered into with Council for you to be paid for the easement once lodged on your title. Council would not likely be interested in a boundary adjustment as this would likely be a lot more costly and they are always looking for the cheaper option.

Also consider if this lot could be subdivided in the future and into how many more lots? If you have a ROW in place then there will be the increased use of it with many more dominant tenements and their invitees, and the hassle of everything that comes with ROW's, including maintenance, etc.

If the block is attractive and subdividable and going to make the buyer a good profit then it may be worth it to the purchaser to then form the paper road and install a bridge over or culvert the stream. This would be a condition of the resource consent for subdivision.

We could speculate all of this, but a phone call to the Council should clarify.

[John the builder]

If they are stooping a road they need to issue a notivce publically notified and I imagine contact affected properties. Talk to them quickly!

you may even be entitled to compensation if it devalues your property?