Abandoned and Extinguished

JACK lives up the hill, from his neighbour, Jill.

They reside on adjoining lots, backing-on to each other and access is via different street frontages.

The lots were initially subdivided 60 years ago.

The plan of subdivision identifies a right of carriageway, ten foot wide, running along Jill’s side boundary.

The right of carriageway gives Jack the right to use the right of carriageway to travel between his lot and the road in front of Jill’s lot.

However, fences were erected 35 years ago, preventing any vehicles from using the right of carriageway and trees were also planted on the carriageway.

Jill wishes to renovate her home, including the construction of a small extension which she plans to build on the right of carriageway.

Her builder discovers that her lot is burdened by the right of carriageway and Jill visits her solicitor with a view to having the carriageway extinguished.

Jill offers Jack $10,000 to consent to the removal of the carriageway.

Jack thinks that his lot will be worth considerably more money if the right of carriageway remains for his benefit and declines Jill’s offer.

Jill commences action in the Supreme Court, seeking orders that the right of carriageway has been abandoned and that it should be legally extinguished from title.

She cites legislation stating that in circumstances where a right of carriageway has not been used for 20 years, the Court has the power to remove a right of carriageway.

Although Jack has not used the carriageway himself, he discusses the issue with the previous owners.

He is informed that their children used to climb the fences and use the carriageway as a shortcut to the local general store.

He learns that the children had done this a few times a week, as recently as fifteen years ago. The children, now adults, swear affidavits regarding their use of the right of carriageway and the evidence is persuasive in convincing the Court to dismiss Jill’s claim.

Email Manny Wood, Principal Solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column cannot be relied upon as legal advice.