Can you define the term right of carriageway?Is it written in law anywhere the conditions that apply to a general right of carriageway.We have a right of carriageway across a few properties at the rear of our property. This ROW is a laneway which terminates at the boundary of our property. Our adjoining neighbours own 2 portions of the land but do not have vehicle access to their properties off the right of carriageway. They constantly block our access with cars and trucks. They claim that they have a right because this is their land. If we drive in behind them they cannot get out and we in turn cannot get in.
Province: Perth WA
Parking our vehicles behind them and leaving it. Police have attended a few times but said on each occasion that it is a civil issue.
Dear CallanIs the right of way agreed in writing or by custom (a past history of use)?Kind Regards
This right of carriageway is registered on our title dating back to 1904. We have a copy of the document which reads as follows:
Peter Reynolds of Fremantle being registered as the proprietor of an estate in fee simple in the land hereinafter described subject to the encumbrances notified hereunder in consideration of the sum of one shilling and for the purposes of carrying out an arrangement made between myself and adjoining owners for mutual creation of easement do hereby transfer and grant onto
Elizabeth Drummond of Fremantle, married woman and her transferees in fee simple full and free right and liberty to and for her and the registered proprietor for the time being All that piece of land and being lot 16 on deposit plan 1913 of Fremantle suburban lot 6 and being the land the subject of certificate of title volume 195 folio 68 or any part thereof and his her and their tenants agents workmen and visitors to go pass and repass at all times hereinafter and for all purposes and either with or without horses or other animals carts or other carriages into out of and from the said land or any part thereof through over and along. All that piece of land nine feet in width running along the eastern boundary of lot 15 on said deposited plan 1913 of Fremantle suburban lot 6 and being portion of the said lot 15 as the same is delineated and coloured blue on the plan drawn in the margin hereof and being portion of the land the subject of certificate volume 161 Folio 86
DearCustomerThank you for your question.You have what is called (interchangeably) a right of way, a right of access or a right of carriageway over your neighbour's land. In law this is considered an easement. An easement benefits one person's land at the expense of another's persons land: in this case being a right for you to use or pass over your neighbour's land to access your land. As an easement is legal right over neighbour's land, it cannot be derogated from without your consent or agreement. If your neighbour is obstructed your right of access, then you may apply to a Court to enforce the easement. That will typically take the form of an injunction to prevent your neighbours from blocking your access. If they then continue to obstruct your access, they are in contempt of Court. So, in summary, your neighbour has no legitimate right to block access with the cars or trucks. You should send a letter of demand to your neighbour specifying the time and dates in which an obstruction has occurred to your right of way (if you haven't already, note down these details on a regular basis). You should indicate that they should cease to obstruct your access immediately, and that a failure to do so will result in legal proceedings for an injunction and an order for costs against them. I suggest registered post with signature delivery or that you physically give the letter to your neighbour.I hope this helps. If so, please click 'accept'.Kind RegardsJonathan40215.4857150116
Thank you for that answer. I require a more definitive answer, can a person park in the ROW and prevent access for 5 minutes or more. Should one have to go around and knock on the door and ask this person to move. Should one have to reverse out to allow this person to free your ROW.
DearCustomerNo problem.I think it depends on whether a person parking in the ROW is an obstruction or not. If it happens repeatedly, and there are alternatives available to your neighbour to avoid parking in the ROW in a way which prevents you from getting out, I would say that it is.At the end of the day, it is a fact and degree analysis as to what is reasonable. Some factors may include:(i) the duration of any obstruction to access;(ii) whether there are alternatives to your neighbour to avoid the obstruction, and the cost or difficulty of those alternatives;(iii) the frequency of any obstruction (daily, weekly, monthly etc.)and(iv) attempts made by the neighbour (if any) to reduce the obstructionIf this obstruction is happening every day, for a period of longer than five minutes, and nothing is being done to reduce the obstruction, I would say that your neighbour/s is/are in breach of the easement and that you could take action to enforce your right of access.Please let me know if you require any further details or information.Kind Regards
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