“Our right of carriageway is on the plan, they’ve got no right to block it” – which case won?
What is a right of carriageway?
A right of carriageway is a form of easement which gives someone the right to access their property through the property of another person.
It is a full and free right for a person in whose favour the easement is created, and everyone authorised by that person, to go, pass and repass through the property that the right of carriageway is on, at all times and for all purposes, with or without animals or vehicles.
Burdened land adjacent to benefitted land
A right of carriageway was noted on the titles of two adjoining properties in Hornsby.
The dominant tenement (the “benefitted land”, which enjoys the use of the easement on someone else’s property) backed onto the rear of the servient tenement (the “burdened land”, which has the easement upon it for others to use).
The owners of the servient tenement had lived on the property since early 2000, while the owners of the dominant tenement acquired their property in 2020 from previous owners, who had lived there since 1974.
Creation of right of carriageway
The right of carriageway was created in 1967. It was 10’0” wide and ran along the eastern boundary of the burdened land. For many years, the right of carriageway had been blocked by fences at each end and by a large pine tree which had been planted at one end.
No driveway or pathway had ever been constructed on the right of carriageway and it had not been used since at least 2005.
Contradictory claims regarding use of right of carriageway
The owners of the burdened land claimed that since they moved into their property in December 1999, the right of carriageway had never been used.
By law, an easement is deemed to be abandoned if it has not been used for 20 years. The owners of the burdened land argued that the right of carriageway had been abandoned by the previous owners of the benefitted land and for that reason, the easement should be extinguished.
However, there was evidence that up until 2005, the children of the former owners of the benefitted land had used the right of carriageway three or four times per week, to access a swimming pool and to carry out pamphlet and paper delivery runs to houses in the neighbouring streets.
In addition, when the benefitted property was sold to its current owners in 2020, it was marketed as having access to the street via the right of carriageway.
Irreconcilable positions lead to legal action
The owners of the benefitted land commenced legal action, seeking to uphold their right to pedestrian access via the right of carriageway and seeking the have the fences built on it removed.
In response, the neighbours counterclaimed, seeking to extinguish the right of carriageway on the basis that it had fallen into obsolescence.
It was up to the court to decide whether to uphold or extinguish the easement.