Carriageway

[mick88]

Any one on here familiar with a "carriageway" that passes through a property to allow access to another property that would otherwise be "land locked" I have a parcel of land that in order to access it I have to drive six metres into another property that has carriageway registered on the title and with the Titles Office of Victoria and the land owner keeps placing obstructions such as trees, posts, rubbish, old tree trunks etc in order to deny us accessing our land via the legal way. The land owner purchased his parcel of land knowing the carriageway existed but he refuses to accept it. I keep moving the "obstructions" but it is just plain annoying! Anyone have any experience or offer any advice.


Cheers, Mick

[buckscreek]

Engage a solicitor. Write a formal letter pointing out the legality of the "right of carriageway" granted over the neighbours property. Suggest a formalised driveway/access/road which you will install and maintain. Ask the neighbour to contact your solicitor with any concerns/responses. Expect a ****fight to ensue. Stick to your guns, but be nice.

[mick88]

He has already had a letter from my solicitor telling him to remove the obstacles (at that stage they were trees and posts) or I will remove them, which I eventually did as he had no intention of doing so! Consequently we are not on talking terms and never were as he would not accept the carriageway existed.
It's hard yards!
It is only six metres into his property and twenty metres wide....the width of a council lane that services the properties.


Cheers, Mick

[nismine01]

In SA I think it would be classified as a 'Council Road' and the council would have an obligation to see you had access to your property.
I would start with the council rather than a solicitor unless he/she is a mate of yours.

Mike

:)

[mick88]

Been to council....not their concern, road/lane ends at property boundary.

[THE BOOGER]

Unfortunately these are left over from a time when people were civil to each other :( there have been numerous fights over rights of way in the last 30 odd years always ugly. If your neighbour doesn't want to co-operate then the solicitor and time and money are the only answer:(

[cjc_td5]

If you have access over the land, you may have rights to fence the boundaries of the access way and so stop his access from the sides. He has no right to fence off the ends of the accessway (and so prevent you accessing it).

[cjc_td5]

In SA I think it would be classified as a 'Council Road' and the council would have an obligation to see you had access to your property.
I would start with the council rather than a solicitor unless he/she is a mate of yours.

Mike

:)

Not necessarily so. It could be a private "Right of Way" (ROW) or an easement over his property with Mick88 as a beneficiary (ie the benefit of access over the land). Council has no party (or interest) in these as they contain no Council assets.

[THE BOOGER]

This the VIC act under which your right of way or carriage way works specifically section 9.2.3 but you need a solicitor just to understand it and will probably have to get a court order served on your neighbour to make them obey:(

http://admin.surveyorsboard.vic.gov.au/uploads/10/docs/Part%203%20Land%20Surveying%20Law%20and%20Administ ration/SPH_S3_Section9.pdf

[schuy1]

I assume it is the same as an "easement" up here, A legal access lane to a property or for the purpose of allowing a pipeline , a power line , roadway or whatever is needed to operate, maintain, supply or access a property that a council roadway cannot.
It is a legal thing, His obstructing you would be the same as me blocking my street with stuff because I did not like the blue car driving past my house! I would be in serious trouble!
Cheers Scott

[Homestar]

Doesn't sound like a good situation. If you're already too far gone to be on talking terms, get you Solicitor to take him to court. Once he has paid court costs once, he may be a bit shy about tempting fate again.

A ****ty way to have to do things, but if you're left with no choice..

[mick88]

Doesn't sound like a good situation. If you're already too far gone to be on talking terms, get you Solicitor to take him to court. Once he has paid court costs once, he may be a bit shy about tempting fate again.

A ****ty way to have to do things, but if you're left with no choice..




We have been trying to reason with him for four years...no go!
He also put in a fence six metres long that was almost one metre over the boundary and there were survey (recent) pegs in place. No consultation, just put in about forty posts and tried grabbing an extra bit of paddock to go with it.

[marting]

Hi Mick

An easement is a right to use a piece of land in a particular way. It basically gives someone else the right to use the land specified in the easement documents, even though they are not the landholder. The easement will benefit (in this case you) one party, and burden ( in this case the landholder) another. The landowner who is burdened(whose land the easement covers) has to keep the land that forms the easement free from any restrictions, obstructions etc. that prevent the easement from being used for it's intended purpose. A carriageway is simply an easement that is dedicated for the purpose of access.
So, clearly your friend is in breach of the conditions of the easement.
I would suggest that if this has been going on this long then legal action is the only way it is going to be resolved. As has been suggested get a solicitor, but one who is familiar with the land act, titles act etc.

Cheers, Martin

[MR LR]

Easy, get a bull dozer and knock everything out of the way, with a D9 parked on your write of way I think he'll know you're serious...

The benefit of this is you can then tell people you have a bull dozer :D

[TeamFA]

Easy, get a bull dozer and knock everything out of the way

That could also help with removing the fence that the neighbour has put on your property.

[BMKal]

Easy, get a bull dozer and knock everything out of the way, with a D9 parked on your write of way I think he'll know you're serious...

The benefit of this is you can then tell people you have a bull dozer :D

I was going to suggest the same. Plenty of cheap second hand dozers around the traps at the moment. We got rid of a couple of old Russian Chetra dozers up at Nullagine a while back. Not good for a lot - but a bloody big machine (bigger than a D10) and a mean looking bit of gear.

One of these parked on your block with the occasional run up and down your easement to push all your neighbour's crap out of the way would soon get the message through. ;)

https://www.aulro.com/afvb/images/imported/2014/05/766.jpg

Failing that - one of their earlier models may be a little less "subtle". :angel:

https://www.aulro.com/afvb/images/imported/2014/05/767.jpg

[Bigbjorn]

Never before heard of a Chetra. They certainly were not around in my years in the mining and construction equipment business. I looked on the internet and they claim the T40 to be the biggest dozer in the world. It certainly is not, only 65 tons and 590 hp. Well below D10/D11, Fiatallis 41b, and the Komatsu equivalent. Were they any good? Or like those Russian farm tractors that were being sold here a while ago.

[BMKal]

They might not weigh as much as a D10 - but park them side by side and the Chetra makes the Cat look small. At a distance, they actually look a lot like a Komatsu.

They were on the minesite before we started there - the client and the local station owner were using them to clear land. Usually only one of the two was going at any one time - their reliability is not too flash. ;)

Plenty of grunt - good for pushing but not so good at ripping. Very uncomfortable for the operator, and it took a lot to get used to them. For starters, the "decelerator" worked in reverse - you had to push down on the pedal to get going and hold it down - and it was heavier than the clutch in a manual Disco 2. :angel:

Plenty of people complained of nearly charging over the edge of the mesa when we were using one to clear the topsoil before mining commenced. We had one on hire for quite a while as there was a shortage of D10's available at the time - ended up buying a low hour machine from Dubai and importing it in. Nobody was sorry to see the last Chetra finally disappear down the road on a float.

This is the last of the two on site at Nullagine ....................

https://www.aulro.com/afvb/images/imported/2014/05/754.jpg

https://www.aulro.com/afvb/images/imported/2014/05/755.jpg

Had a look at this Shantui at the Bauma Expo in Shanghai - it's a little bit bigger than the Chetra :)

https://www.aulro.com/afvb/images/imported/2014/05/756.jpg

[Bigbjorn]

A Fiatallis 41B was around 76 tons with HSU blade, ROPS cabin, a/c unit, and three tyne parallelogram ripper. Weight varied upwards a bit if one of the other optional rippers was fitted. If you wanted to hear a big engine bellow, then the V12 Cummins in a 41B was one to behold when ripping with an eight foot Kelly full depth in the bauxite ore body at Gove.

[Ancient Mariner]

Looks like this thread got bulldozed to one side:D

[Hogarthde]

Hey , Old Bushie, how about you start a new thread.I operated a 41b at Ulan Coalmine 1981 and loved the old thing , all the young 'drivers' chose the new D10. However White Industries eventually bought a swag of biggest Komatsu 455?

No disrespect to original topic , as a landowner i have had issues too so find the discussion enthralling. [but not as appealing as old dozers]???


dave

[shining]

If the easement appears on his title documents what does he not accept? What is his initial gripe? It might help formulate a solution.

[DiscoMick]

We once had a similar situation with a right of way over a neighbouring property for access to a block we bought. He fenced it off. Our solicitor had messed up when we bought the property. Long story short, we got a new concrete driveway directly to the road at another point paid for by our solicitor at no expense to us, and relinquished our right of way. In the end, it was a better solution for all.
I believe there is a rule that if a right of way is not used then after a certain time (8 years??) it is said to have lapsed, so make sure you continue to exercise your right to use the right of way.
If it is feasible, you could offer to relinquish your right of way over his property after he pays the cost of providing you with a new entrance to your property. Just a thought...

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[mick88]

We once had a similar situation with a right of way over a neighbouring property for access to a block we bought. He fenced it off. Our solicitor had messed up when we bought the property. Long story short, we got a new concrete driveway directly to the road at another point paid for by our solicitor at no expense to us, and relinquished our right of way. In the end, it was a better solution for all.
I believe there is a rule that if a right of way is not used then after a certain time (8 years??) it is said to have lapsed, so make sure you continue to exercise your right to use the right of way.
If it is feasible, you could offer to relinquish your right of way over his property after he pays the cost of providing you with a new entrance to your property. Just a thought...

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You are thinking of "Adverse Possession" but it does not apply to Carriageways". The property only has one road that is accessible.


Cheers, Mick.

[Bigbjorn]

Mick, I think you need a referral to a law firm with experience and expertise in these matters. Have them remind your neighbour of your rights and his obligations or else "see you in court".

[solmanic]

I thought I might post this plan showing the ****ed-up easement one of our neighbours has on their property just near Brisbane. Chester Rd that runs along the southern boundary of the lots was not placed on the correct alignment and meandered in and out of the properties. Numnuts who owned the highlighted block decided he didn't like the legal liability of having owners of adjacent blocks traversing his land so he placed a large log (we're talking a trunk over a metre in diameter) across the track.

Now that wiggly dark line running up the western side of lot4 is actually a surveyed easement believe it or not. We pointed out that our continuing to access our block along the southern boundary was lesser of two evils given that if we all started using the easement to get to our blocks from the rear he would effectively lose functional use of all of the land from the easement to the western boundary. He was an absolute ***** - put up "no trespassing" signs everywhere and thought he would grow avocados or something. The local farmers couldn't believe it.

We also petitioned the local council to re-align Chester road correctly but their response was interesting. They (and a lot of other rural councils I presume) did not like the fact that farmers were carving up their properties and selling bits off to city folk for bush camping/retreat/hobby farming with no formed road access. The farmers were smart as they realised us city folk had no interest in fencing so they could still run their stock over the land but didn't have to pay rates on it. Consequently when one of the small lot owners (dickhead on lot 4 in this case) decided he was no longer happy with the access that had been there for twenty years he simply blocked it. There was nothing anyone could do as it was not a right of way or an easement. Council refused to re-position the track as it was up to land owners to pay to get tracks up to a minimum standard before council would take on the ongoing maintenance.

In the end two of the neighbours started using the easement but had to keep cutting chains to get through lot 4's gates. I don't think anyone took anyone to court, they just kept doing what they were doing. We chose to re-bulldoze the road at our own expense and idiot features on lot 4 gave up his wild, avocado growing dreams and sold a few months later.

http://i256.photobucket.com/albums/hh191/solmanic42/HighviewNeighbourBlock.jpg (http://s256.photobucket.com/user/solmanic42/media/HighviewNeighbourBlock.jpg.html)

[mick88]

Sorted....found the definition of a carriageway on the Victorian Land Transfers Act (page 197) and Vic Pol have a fine for "Obstruction of a Carriageway"
Needless to say it is no longer obstructed!

[350RRC]

There is always a way................. if you let it become apparent.

DL

[Michael2]

Sorted....found the definition of a carriageway on the Victorian Land Transfers Act (page 197) and Vic Pol have a fine for "Obstruction of a Carriageway"
Needless to say it is no longer obstructed!

Police are so much cheaper than lawyers, and so much more convincing too.

Well done.

[Didge]

I had a similar problem with a simple residential right of way for about 6 months; neighbour parked on driveway restricting my egress - tried being polite and was shown absolute scorn for my manners. In the end, I lost my temper and threatened to park him in all week - problem solved - fight fire with fire :)
Glad to hear you solved it. Geez there are some real dickheads around aren't there?! I wonder what makes them think they've got some god given right to do as they please.

[DiscoMick]

You are thinking of "Adverse Possession" but it does not apply to Carriageways". The property only has one road that is accessible.


Cheers, Mick.

That's not a term which came up at any point in our issue - can you explain it?

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[cjc_td5]

That's not a term which came up at any point in our issue - can you explain it?

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"Adverse possession" is the concept that if you occupy and use land for a time period (determined by law and precedent), even if you do not own the land by title, then you can claim possession of the land as yours.

Classic example is a farmer that has used and managed a (or part of a) paddock for many years as part of his farm, even though technically his land title boundaries may not include that portion of land. He may have rights to claim legal possession of the land if challenged.

From memory this law only is relevant to "old title" land. More recent land titles (say anything less than 30 years old) is not eligible for adverse possession rules.

BTW, I'm a Council Engineer, not a wig. This does not constitute legal advice etc etc etc.....:D

[mick88]

That's not a term which came up at any point in our issue - can you explain it?

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In Victoria i think it is a period of 15 years of use or occupancy of the parcel of land.
If you ring the Vic Land Titles Office there is a section on it.
It does not apply to "carriageways" according to my legal advice and advice from the Titles Office (Vic). Carriageways are forever unless removed by the land owner they are in favour of.

Cheers, Mick.

[mick88]

Police are so much cheaper than lawyers, and so much more convincing too.

Well done.


Yes they are and it accelerates the process too! :)
I think the "Blister" for it is a considerable amount of bucks and three notches in the licene as well! ;)


Cheers, Mick.

[BMKal]

"Adverse possession" is the concept that if you occupy and use land for a time period (determined by law and precedent), even if you do not own the land by title, then you can claim possession of the land as yours.

Classic example is a farmer that has used and managed a (or part of a) paddock for many years as part of his farm, even though technically his land title boundaries may not include that portion of land. He may have rights to claim legal possession of the land if challenged.

From memory this law only is relevant to "old title" land. More recent land titles (say anything less than 30 years old) is not eligible for adverse possession rules.

BTW, I'm a Council Engineer, not a wig. This does not constitute legal advice etc etc etc.....:D

There's quite a bit of that in Kalgoorlie, especially in the older parts of town (where I live). Many property boundaries have been established not quite where they should be according to drawings etc.

Classic case was a mate of mine a few doors down the road. He had new neighbours move in next door - they demanded that he move his boundary fence a metre back towards his own house, as they had looked at survey drawings and discovered that the fence was technically on their property. My mate actually agreed, provided that they pay half the cost of a new fence (the old fence needed replacing anyway) and he proceeded to purchase the required fencing materials. New neighbour then refused to share the costs - so my mate told them to get stuffed and it all ended up in court. Aerial photographs were produced as evidence which showed that the fenceline had been in the same place since the 1930's - my mate won the case.

We then put up the new fence with the gear that he had bought - in exactly the same position as the old fence - much to the "disappointment" of the new neighbour.

Even one side fence on my property has a "dog leg" in it, and my yard steps into the next door property by about a metre for the back two thirds of the length of the block. Those same aerial photos show that my fenceline has also been in the same place since the late 1930's. :D

[Tote]

"Adverse possession" is the concept that if you occupy and use land for a time period (determined by law and precedent), even if you do not own the land by title, then you can claim possession of the land as yours.

Classic example is a farmer that has used and managed a (or part of a) paddock for many years as part of his farm, even though technically his land title boundaries may not include that portion of land. He may have rights to claim legal possession of the land if challenged.

From memory this law only is relevant to "old title" land. More recent land titles (say anything less than 30 years old) is not eligible for adverse possession rules.

BTW, I'm a Council Engineer, not a wig. This does not constitute legal advice etc etc etc.....:D

That was one of the reasons we paid for a survey and converted our block in town from old title when we bought it. There is a transitional period where there is an opportunity for historical access users to apply for easements to continue access and after it has converted to Torrens title that is no longer possible.

Regards,
Tote

[marting]

In some states (Victoria and obviously WA) you can claim adverse possession over part of a title. In other states (NSW not 'old title' and Queensland) you can only claim adverse possession over the whole of the title. This possession must also be what is termed 'open and hostile'. In other words the registered owner of the title must be aware that another party is in possession of his title. Cases of this occurring are rare.
Having worked with both, I think that allowing adverse possession over part of a title is unfair. Consider the situation of the person in Kalgoorlie in the above post. They have purchased the block of land shown on the title diagram and expect to have paid for and to take ownership of the full area as shown on the title. To then lose a portion of this land because the fence was put in the wrong place originally I feel is unfair (not withstanding their actions in regards to resolving this particular case).
Cheers, Martin

[cjc_td5]

In some states (Victoria and obviously WA) you can claim adverse possession over part of a title. In other states (NSW not 'old title' and Queensland) you can only claim adverse possession over the whole of the title. This possession must also be what is termed 'open and hostile'. In other words the registered owner of the title must be aware that another party is in possession of his title. Cases of this occurring are rare.
Having worked with both, I think that allowing adverse possession over part of a title is unfair. Consider the situation of the person in Kalgoorlie in the above post. They have purchased the block of land shown on the title diagram and expect to have paid for and to take ownership of the full area as shown on the title. To then lose a portion of this land because the fence was put in the wrong place originally I feel is unfair (not withstanding their actions in regards to resolving this particular case).
Cheers, Martin

The majority of my experience on this issue is in NSW, I have not had to explore the situation in WA yet. I note your comment that in NSW adverse possession can only be over a whole lot. I am buggered if I know how this would work in a rural area then, when a fenceline may be a few metres off a boundary but the lot size may be 40 acres.

Re BMKal's example, I only think this would be an issue where a purchaser buys the land "sight unseen". The vast majority of purchasers would inspect the house and expect that they would be purchasing what they could see (ie between the fences), and the title diagram would not have much relevance unless there were survey pegs present. You may be theoretically getting less land area than you thought you may be getting as per the title diagram, but you must have been prepared to accept that you were buying a house and fenced backyard etc of existing, actual dimensions etc. Unless of course you spotted the descrepency during the inspection process and knowingly bought up with the intention of having an argument with your new neighbour.:mad:

[JDNSW]

Just to throw in a slightly different situation. One of my boundaries is a creek, and the boundary runs along the centre of the creek for about half a kilometre.

Obviously, a fence along the centre of the creek is not feasible, and, in fact the fence is on my side (and has been since the 1930s). Also, the fence does not follow all the bends of the creek, cutting across some of them. (What is known around here as a "give and take" fence.)

When I was buying the place, I became aware of an ongoing dispute between the seller and the neighbour over a bore he had sunk between the fence and the creek, i.e. on the neighbour's side of the fence. After a very brief discussion between our lawyer and the neighbour's lawyer, we agreed to put a dogleg in the fence so the bore was now on our side of it. I can't remember, as it was over twenty years ago, but I think he paid for some of the materials.

John

[DiscoMick]

"Adverse possession" is the concept that if you occupy and use land for a time period (determined by law and precedent), even if you do not own the land by title, then you can claim possession of the land as yours.

Classic example is a farmer that has used and managed a (or part of a) paddock for many years as part of his farm, even though technically his land title boundaries may not include that portion of land. He may have rights to claim legal possession of the land if challenged.

From memory this law only is relevant to "old title" land. More recent land titles (say anything less than 30 years old) is not eligible for adverse possession rules.

BTW, I'm a Council Engineer, not a wig. This does not constitute legal advice etc etc etc.....:D

Thanks for that. Now I understand. No legal reliance will be placed upon this advice etc etc...

You can't always rely on plans being accurate either. For example, my neighbour's plan showed his water main coming across the front of his neighbour's place to his house, so my neighbour planned and had approved an extension on the front of his house, based on the council's plan showing the area as not having the water main on it. However, when the location of the water main was checked it was actually on my neighbour's block, not the other block, which meant he couldn't build his extension there, as you can't build over a water main. In the end, the council refunded his building application fee because its plan was wrong and he built on the back of his house. (Probably didn't hurt that he's a senior police officer and used to getting his own way in bureaucratic disputes!)
So, the water main had not been laid where the council's plan said it was.


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[mick88]

Boundaries can be found to have discrepencies due to worn surveyors chains etc and now that modern electronic surveying equipment is much more accurate these discepencies must be the cause of some horrible border wars around the country.

[3toes]

Boundaries can be found to have discrepencies due to worn surveyors chains etc and now that modern electronic surveying equipment is much more accurate these discepencies must be the cause of some horrible border wars around the country.

Queensland-NT border 'in wrong place'

Queensland-NT border 'in wrong place' - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/2009-09-16/queensland-nt-border-in-wrong-place/1430608)

A Gold Coast surveying team says it has confirmed suspicions that Queensland has claimed Northern Territory land.

Paul Jones and his colleagues have surveyed a 150 kilometre section of the state divide.

He says a small error in 1884 has left Queensland with hectares of NT land.

"It was intended to be exactly two minutes or true north along the 138 degree line," Mr Jones said.

"A slight error in the instrumentation that was used created a bit of an error that grew from the southern end of the border line.

"That one minute and 30 seconds in angular just grows from 10 to 15 millimetres every 100 metres," he said.

"If you keep extending that for the length of that border line - nearly 1000 kilometres - it just grows and grows so you get a little slice of pie favouring Queensland."

Mr Jones says that by the time they reached the Gulf, it resulted in a difference of about 600 metres.

He says the total amount of land involved has not been measured - but it is sizeable.

"It rolls into the Toko and Toomba ranges which is like moonscapes on top and wonderful gullies and gorges and even little waterholes at the bottom," he said.

"It's the beautiful red Simpson Desert National Park at the southern end which is fantastic rolling sand dunes, well vegetated, but magnificent country."

Mr Jones does not expect his findings to change the Queensland-Northern Territory border.