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DECEMBER 2016

Shared Driveways Re-visited

A shared driveway is something that can, completely unexpectedly, throw ostensibly polite neighbours into the throes of war.

One such battle recently spilled from a Remuera driveway into the arena of the Auckland High Court. In that case, it emerged that the right of way registered on the title was drafted in such a way that one of the neighbours could not access a part of the driveway that was needed to access their garage. The Judge, while admitting that there was an error with the drafting and registration on title, could not make a ruling on behalf of either of the combatants; leaving both neighbours with significant court and legal expenses – and a feud no closer to a truce.

We would like to help our clients avoid these kinds of situations. First of all by ensuring our clients receive accurate legal advice in pre-purchase due diligence, and secondly by assisting with any continuing disputes to be resolved diplomatically and without needless litigation. As such, the following is a summary of rights and obligations in respect to shared driveways. Your rights and obligations are primarily dependent on the nature of the title to the property.

Freehold (Fee Simple)

With a freehold title you own the land on the title. A shared driveway could be effected on the title either by way of an Access Lot or a Right of Way Easement.

(a) Right of Way Easement

A right of way can be registered on your title allowing your neighbour the right to use that part of your land, or giving you the right to use a part of your neighbour’s land.

Under the Property Law Act, a right of way encapsulates the right to pass and re-pass over the driveway, but not to obstruct the driveway to block any other person’s right to pass and re-pass. However, in order to confirm your rights and obligations, we advise that you should verify the outlined area of the right of way on the title plan, and peruse the easement document registered on your title, which details the rights and the obligations in respect of the right of way.

It is very important to make sure that these easements accurately reflect the intended situation on the ground. We advise that you take due diligence in inspecting the property, noting whether there could be practical issues with access, and inspecting all easements registered on your title prior to making a purchase.

(b) Access Lot

In modern subdivisions you may, together with your neighbours, receive a portion of an additional lot (the driveway). This lot – known as an “Access Lot” – will be shown on your title and will indicate your portion of the ownership of the lot. In such a case, you will usually have shared responsibility in accordance with each owner’s respective proportion to pay rates and maintain the driveway. Under the Property Law Act, an access lot creates the same right to pass and re-pass as a right of way discussed above.

You should be particularly mindful when buying in a development still in the process of subdivision. We advise that you enquire with the vendor about the structure of any access lot to be created, and that the intended plan is attached in your Agreement – with any access lot clearly outlined. This would confirm exactly what land you are being sold, with no additional surprises such as an unneeded access lot in the back of your property.
Cross Lease

With a cross lease title you have effective ownership of the dimensions of your house, while land is divided between you and the other owners of the cross lease in accordance with the documentation lodged on title. The title will outline the common areas (such as a driveway) and the lease details rights and obligations thereon. Usually, all owners of the common areas have joint responsibility to maintain such areas in accordance with their proportional shares, and have an obligation not to obstruct the common areas.

Body Corporate

Should you own property in a Body Corporate – that is a Unit Title or Stratum Title, you only own the dimensions of your unit, while the Body Corporate has the responsibility of managing the common areas including any shared driveway. The Body Corporate will be responsible for maintenance and upkeep, and these costs will then be on-charged as a part of levies paid proportionally by all owners. You should contact the Body Corporate should any issues arise in relation to the common area. Please also be aware of the Body Corporate Operational Rules, and refer back to them should you wish to ascertain what specific rights and obligations the Body Corporate has imposed in relation to the common area.

Conclusions

We recommend that you conduct your due diligence of all aspects prior to purchasing any property. This includes turning your mind to shared driveways, and particularly in inspecting the title plan, encumbrances registered on the title, and the wording of your Agreement to avoid any uncertainties.

Any current disputes with neighbours should first of all involve ascertaining your rights under your title, and then attempting to negotiate and amicably resolve the situation with any neighbours. Our practical experience is that frequently problems with shared driveways are caused by tenants or visitors – however, legally the issue must be resolved between the respective owners.

Should you have any queries whatsoever in relation to a shared driveway, please do not hesitate to contact us.