How to deal with landlocked land

Introduction

If you buy a property without properly checking your access rights to it, or if you have had a long-term arrangement with a neighbour to have access to their land and this arrangement ceases, you may find that you have no reasonable access to your property and are "landlocked". If so, you can apply to the High Court under the PROPERTY LAW ACT 1952 for an order giving you an access right over a neighbour’s property.

How do I apply for a court order?

Your application must be made to the High Court. Immediately after filing your application, you must serve a copy of it on the local authority for your area.

The owner of each piece of land adjoining your land is a defendant to your application. Any person with an interest in your land or in any land that may be affected by an order has a right to be heard by the court in relation to your application.

What factors does the court consider in making a decision?

In making a decision, the High Court must consider:

• the nature and quality of any access that existed when you bought or otherwise acquired your land
• the circumstances in which your land became landlocked
• your conduct and that of the other parties, including any attempts made to negotiate reasonable access
• the hardship that you would be caused if the court did not make the order, balanced against the hardship that making the order would cause any other person

The court also looks at any legal access that currently exists, its state of repair, and the cost of upgrading or maintaining it.

The court will also consider whether access for a vehicle is necessary or whether access on foot is sufficient.

What powers does the court have to grant reasonable access?

If the court decides to grant you an access right, it may do this in one of two ways:

• by granting you a right of way (an "easement") over a neighbour’s land (see How to enforce rights conferred by an easement)
• by vesting in you the appropriate proportion of the ownership ("legal estate in fee simple") of a neighbour’s land

Both of these solutions can be registered on the Certificates of Title of the properties involved. This means that any parties interested in the properties have notice of the change in circumstances.

Will I have to pay my neighbour compensation?

The order granting you access will generally be made on the condition that you pay compensation to your neighbour for the inconvenience involved. The court can also order you to put up and maintain fences.

Ordinarily, you will also be required to bear the reasonable cost of carrying out any work necessary to give effect to the order granting you access.

Cautionary notes

• If you find that you do not have reasonable access to your property you should contact a lawyer. Your lawyer will be able to advise and represent you in any negotiations with the other party in order to see if an amicable agreement can be reached. If this fails, your lawyer will prepare the documentation necessary to obtain the court order to remedy your problem.