Shared driveways are notorious for their ability to cause arguments between neighbours. Perhaps your neighbour is obstructing the driveway by leaving a parked car or rubbish bin on it or maybe they are refusing to pay for their share of maintenance costs.
Whatever the problem is, it’s crucial to understand how your driveway was created and therefore which category it falls into, as this will clarify your rights and obligations and hopefully allow you to resolve the dispute amicably.
There are several ways in which a shared driveway can be created. Generally, they are formed by way of an easement, cross-lease title or dedicated access lot.
A right of way easement allows the registered owner of a property to pass over another owner’s land. For example, it may be that your neighbour owns the driveway but you have been granted the right to use it.
Sometimes, the easement instrument registered on the title to your property will stipulate what the critical terms and conditions are, such as who needs to pay for maintenance and repairs. However, easement instruments are often expressed vaguely, simply stating that the implied rules contained in the Land Transfer Regulations 2018 or the Property Law Act 2007 apply.
The Regulations essentially state that each party is ‘equally responsible’ for the cost of a shared driveway’s maintenance and repairs, whereas the Act stipulates that each party must make a ‘reasonable contribution.’ According to the Act, the owner of the rear property would be liable to pay more for any maintenance required given that they have used a larger proportion of the driveway. Although the difference between the Regulations and the Act seems slight, in practice it can have a significant effect so it is important to know which applies to your driveway.
Additionally, both the Act and Regulations state that the right of way must be kept clear of any obstructions which may interfere with the use and enjoyment of the driveway. Therefore, it is possible to breach these provisions simply by parking your car on the driveway if other parties are unable to pass your car and use the driveway.
Cross-lease titles create exclusive rights for each owner in respect of common areas, which typically includes driveways. In most instances, the lease document will stipulate that the cost of maintenance and repairs is to be shared equally among the owners.
However, this is not always the case so it is critical to check the terms stated on the Memorandum of Lease to ascertain what your rights and obligations are.
Access lots are regularly created to accommodate subdivided land where multiple parties require a right of way. Each party that uses the access lot will own a share as recorded on the title.
The Property Law Act also applies to access lots, but each party’s liability in respect of maintenance and repair costs will usually be proportional to the share owned.
Once again, it is important to assess the title to be sure of your rights and obligations. Often, these are set out in a covenant registered in the titles to the affected properties.
P/ 09 489 9102
Jackie is one of the longer-standing members of the Armstrong Murray team. Her fascination with the law began at Armstrong Murray in 1991, as a Legal Secretary and later as a Legal Executive.
During her 23 year tenure, Jackie has had an opportunity to practice in most areas of law. Jackie’s area of expertise is Estate Administration. She particularly enjoys Estate Planning, as each file matter is so unique and provides an opportunity to establish close relationships with her clients. Jackie also advises clients in the areas of Residential Conveyancing and Wills.
Note: This post is brief and general in nature. You should not treat it as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this post. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this post.