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  1. #1

    Default right of way and unit title access

    Hi,
    We have a right of way and the right of way is equally divided among 3 properties with each property having an easement over the other two properties 1/3 of the driveway.
    One of the neighbours wishes to further subdivide his property into 3 more properties and use the existing right of way. I assume the properties will be on unit title. Can this be done legally if the other parties to the right of way object to increasing traffic through the right of way.
    My view would be the right of way is shared between 3 parties and even though one party might wish to subdivide but claim his 1/3 share is still 1/3 share (but now common to 3 parties that have unit title to his property) the drive way is not in 1/3 shares between 3 parties as 5 parties are now using it?

  2. #2

    Default

    I would say he should be able to distribute (and subdivide) the ownership of his 1/3 as he sees fit. (but not create 1/5 shares). Have you asked the council they will have to approve the subdivision.

  3. #3

    Default

    Definately check with Council. I have seen it where increased users of a ROW are an allowable activity where one parcel of land is subdivided. There may be rules on needing the width of the ROW to be wider to support increased traffic. Your Counci is going to give you the best answer.

  4. #4
    Join Date
    Mar 2008
    Posts
    103

    Default

    Be interesting to find out, im in the same boat. Things like water drainage, right to run water over other property size of row, where do all the utilities for new houses run ie through their strip or your strip etc - ie underground wiring etc. Ie it might be a right to traverse over a piece of ground and to run utilties through it etc. Their maybe things like convents which control fencing and number of dwellings etc.

    From memory you also need a mimium of 2.5 meters for a driveway entrance for up to 5 houses and 5 meters great than 5.

    Most likly you need the other guys permission to subdivide.

    unit title is something for apartments etc is this a house or town house or something ?
    Last edited by TheFlash; 19-05-2017 at 09:56 PM.

  5. #5
    Join Date
    May 2013
    Posts
    190

    Default

    sounds like a crosslease?.......if thats the case, then the guy does need everyones permission.

  6. #6
    Join Date
    Dec 2010
    Location
    Cambridge, NZ
    Posts
    1,375

    Default

    Sounds more to me like three freehold properties all owning a strip 1/3 the width of the shared accessway and easements over the other two strips, which is relatively common. If it is a crosslease with common property driveway then everyones consent is needed, but I don't think it is a crosslease.

    A subdivision of one person's property will see each lot inherit the same easement rights. It is the LAND that has the benefit of the easement, not the owner. Owners come and go, but the land remains (sounds like a really pompous proverb, I know), and all of the dominant land has the right to use the easements over the servient land. Council restrictions on extra traffic per metre width of driveway will apply.

    Potentially you can argue in court that the new traffic flow exceeds the extent of the parties intentions when the easement was granted. I'm simplifying that legal argument substantially, but it has worked on occasion...however I am not confident that a 3 unit subdivision would be nearly enough to use it.

  7. #7
    Join Date
    Dec 2010
    Location
    Cambridge, NZ
    Posts
    1,375

    Default

    PS the game changes if they add any new land into the subdivision. Then they're trying to use easements given in favour of the original land for new land, which is a no-no.


 

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