Is your shared driveway driving you nuts?
How a right of way works
Most shared driveways have an easement, allowing one party right of way over another party. The easement certificate or instrument registered on the titles to the respective properties will contain the rights and obligations for each party. In most cases, the easement will refer to the Land Transfer Regulations 2002 and Schedule 5 of the Property Law Act 2007, which sets out the implied rights and covenants for right of way easements.
A right of way easement is simply the right to pass and re-pass over a prescribed area on foot, or in vehicles or machinery. It extends to agents, invitees, tenants, livestock and the like. Each party is responsible for repairing any damage caused and keeping the right of way clear from obstructions. However, if your neighbour parks on the right of way but you can still get past, they may not be in breach of these implied rights.
There are some potholes to be aware of, such as the difference between the Regulations and the Act for the cost of general repairs and maintenance. The Regulations state the cost is to be shared equally. The Act states each party must make a ‘reasonable contribution’ to the cost. In practice, this would require the owner of the rear property to contribute more than the owner of the front property because they use more of the driveway. Make sure the document detailing your easement specifies whether the Regulations or the Act apply.
What is an access lot?
If multiple parties need a right of way agreement, such as in a subdivision, your rights and responsibilities may be governed by an access lot. An access lot provides each owner with a share of the driveway. This will be recorded on your title, along with your rights and obligations in respect of the access lot.
The Act generally also applies to access lots. However, it is likely that your maintenance and repair costs will be based on your share of the access lot.
Driveways owned by a body corporate
If your property is part of a body corporate, the body corporate will have rules regarding the use of the driveway. It may be referred to as a common area. Body corporates usually have tight rules for common areas, including restricting the noise of vehicles, the hours it can be used, and prohibiting parking. If you’re thinking about buying a property in a body corporate, you will have to find out how many parks you’re allowed if you have more than one vehicle.
As your body corporate maintains the common area, the associated costs are included as part of your body corporate levies. Any disputes over the use of common area should be covered in the body corporate rules including a resolution process.
Driveways in cross leases
Cross lease properties also generally refer to a shared driveway as a common area. The common area is owned by all the properties in the cross lease. The rules of use should be detailed in the lease document registered on your title. In most cases, the common area will be exclusively used for property access and prohibit parking. Repairs and maintenance is usually shared equally between all parties, but you should check your lease if you are unsure.
Before your shared driveway drives you nuts…
Talk to our legal champions if you have an issue with a neighbour over a shared driveway. As you have to live close together, losing your cool and taking action such as getting their car towed isn’t a good idea. We will ensure you’re clear about your rights and obligations before you talk to your neighbour to resolve the issue.