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Restricting access to a right of way easement


02 Dec 2022

Our strata units have a right of way to allow access to two buildings further down the path. Unauthorised people walk through our property. Can we put a lock on the gate and only allow authorised people through.

 

Our block of 6 strata units has a right of way leading through our property to allow access to two buildings further down the path. People not associated with the buildings walk through our property to access the next street. They are not entitled to do so.

We have had nuisance people coming through the gate into our property and intimidating some of our owners. Are we able to put a lock on the gate if we issue the authorised ‘right of way’ owners a key? In order to do this, who do we need permission from?
 

Contact a lawyer to give you general advice concerning your rights and obligations before putting locks on the gate.

 

To consider having permission to put a lock on the ‘right of way’ gate is not a cut and dried proposition, with a lot of factors to establish. The first place to start in determining the right course of action to manage / prevent foot traffic nuisance is with your Title Documents. You need to confirm what type of ‘Right of Way’ or easement exists over the common driveway, assuming it’s a dual driveway/footpath. In Common Driveway Laws in NSW (often referred to as shared driveway laws under the theme of property law and easements) there are 3 main types of easements:

  • Right of Carriageway: right for a person authorised to drive a vehicle;

  • Right of Footway: a person authorised to walk or bicycle over specified parts;

  • Right of Way: right for a person authorised to drive, walk use in general terms.

Therefore, if you have a ‘Right of Way’ shown on your title, you are not allowed to obstruct the use of any part of that right by the person who enjoys that right as you can’t be 100% sure none of the residents in the other two blocks aren’t using the ‘Right of Way’ to access the lower street as other non-residents do. Further consideration would have to be given to safety. If it’s a dual vehicle and foot traffic, what are your insurance limitations in the event of an incident and are there signs clearly notifying the restricted use of the ‘Right of Way’?

I would also recommend contacting a lawyer to give you general advice concerning your rights and obligations before putting locks on the gate, even though your intent is to provide keys to residents there might be fire evacuation restrictions. You should also have the lawyer give you advice if the culprits are potentially trespassing, and to check what easements there are on your property. In NSW, you can contact NSW Land and Registry Services. They have all relevant information on the types of easements and details of easements on your property.
 

Eddie Parada | Australian Strata Management

eparada@deewhy.asmstrata.com.au