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I have same situtation however lm told that by implication…

Customer Question
I have same situtation...

I have same situtation however lm told that by implication if law the house in front has an easenent of maintenance to wall eaves windows. Neighbour wants access via side verandah with steps leading into my driveway. Neighbour has full street access and own cross over carport . Could access my driveway via street front to access their wall for purposes of maintenance. Do they have a right to another point if access?

Lawyer's Assistant: What state are you in? It matters because laws vary by location.

Victoria

Lawyer's Assistant: Has anything been filed or reported?

Yes l reported it to my lawyer and are now heading to court. .its been 4yrs. Their lawyer saying that an easenent if way was created by transfer of land act. My lawyer saying it doesn't qualify as is not necessary therefore a gate thorough fare between the two properties is unnecessary. There is no mention of easenent on title or subdivision. Only section 12/2 ovee all the land. There are is no common property.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Will this costs me?

Submitted: 7 months ago.Category: Australia Law
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Answered in 4 hours by:
11/21/2017
Solicitor: Leon, Solicitor replied 7 months ago
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,591
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, I am Leon, a NSW Solicitor. I will be assisting you with your question today. I may ask a few questions. I can call you for an extra fee.

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Solicitor: Leon, Solicitor replied 7 months ago

Good Morning

So you are saying they have an easement to access your property?

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Customer reply replied 7 months ago
Im in victoria. Im in a battle axe property. Im the house at the back. The driveway is part of my property. There are mo common property. We each have independent access to our homes. House in front has full street front entrance 1.2 mtrs side entrance to access rear of their backyard. Steeet front access to Own carport with own crossover. The driveway is my private driveway and sole entry into my home. House in front has boundary fences set back from title boundary and a step leading off the verandah into driveway. I have asked for fences to be aligned to title boundary and step to be cut back behind the boundary. Neighbour in front has refused. Despite that the wall to her house will remain unfenced and l have given permission to access via my main gate for the purposes of maintenance for wall eaves and windows. House in front is insisting on an easement of way, A throughfare between the two properties via verandah step. Neighbour agreed to a gate but gate to be locked at her discretion. There is a bit more history of to and fro. But essentially is she entitled to a side boundary gate to access her wall? Or lm l entitled to shore my boundaries and allow access via my main gate for the purpose of maintenance to wall.
Solicitor: Leon, Solicitor replied 7 months ago

Good Morning

So you are saying the fences are no in the correct position. I assume you have a survey to prove this?

The access to maintain her wall is only because you allow it, there is no registered easement that gives her the right to access that part of your land to maintain?

If you did not grant the access, can she maintain without going to your land?

A simple yes or not to the above will suffice.

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Customer reply replied 7 months ago
She says she has an easement of way granted by my previous owner my vendor said they bought if the plan and have signed an affidavit denying giving such an easement. Neighbors lawyer is claiming that an easement of way was created by implication of law by the transfer of land act 1958 in favour of the house in front. There is no mention of any burden of easement on title original transfer of land. Only section 12/2 on plan of subdivision
Customer reply replied 7 months ago
survey to prove boundaries. No easement noted. Thick boundary line dividing the properties. And no access is needed to maintain wall eaves windows
Customer reply replied 7 months ago
Sorry access is needed to maintain wall
Solicitor: Leon, Solicitor replied 7 months ago

They are claiming that they have an equitable easement

They have to provide evidence of what they claim.
If you have an affidavit from the previous owner that they did not grant her any such right

and also have the plan that does not show any such right this is in your favour.

If she can access it without going through your land that give you a greater chance of success.

In the end it is her word against yours and the more evidence you can get from previous owners the better.

The court is going to rely on her word against yours.

As there is nothing registered she is relying on common use.

There does not have to be a common property. She has to show that it has been permitted since the subdivision and she has a right that has come about over time.

It is an equitable interest and the court will listen to all the evidence so the more you have the better.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. I am happy for you to ask further questions on anything you wish more detail on.

Regards

Leon

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Customer reply replied 7 months ago
The verandah access has been there since subdivision. She claims of continious use. However. My lawyer says does not qualify as subdivision has not been in exsistance in that configuration for 20yrs and no statuary time can run against my home as it has been rented since subdivision. Would this be correct?
Customer reply replied 7 months ago
Property subdivided 1995 complaint of trepass made 2013 when l bought the property
Customer reply replied 7 months ago
Have been in legal dispute since then property continues to rented
Customer reply replied 7 months ago
Could you please reply to above thx Leon
Solicitor: Leon, Solicitor replied 7 months ago

What is registered you cannot do anything about. You cannot refuse them access.

The 20 years is for adverse possession not the right to use.

This is for her to say it is her land because she has improved it.

This has nothing to do with an easement by use.

If she was granted access by previous owners before you then she can make a claim. You have stated that is not the case from who you bought it from.

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