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September 2009

Shared Driveways. Your rights and obligations.

Your rights and obligations

Often, when acting for clients who are purchasing a property with a shared driveway, we are asked to explain to them their rights, obligations and responsibilities in respect of upkeep and maintenance of the driveway. Those responsibilities and rights will vary depending on whether it is held in joint ownership, a crosslease or a strata title. In this article, we briefly outline the different types of ownership and what your obligations are in respect of those different types of driveways.

Crosslease

Generally, if you own a property which is on a crosslease title, the driveway is usually referred to as “common area”. There are different versions of crossleases used, however the rights and obligations are largely the same. Under a crosslease, the owners must not obstruct the common area driveway in any way and it is to be used only “for ingress and egress by vehicle or on foot”. For example, you cannot park your car and leave it parked on the common area driveway. It is the responsibility of all crosslease owners, who have the legal right to use the common area driveway, to meet the costs of upkeep and maintenance.

Body Corporate

If you own a property in a Body Corporate (strata title) where there is a designated common area which is used as the driveway then the rules relating to that common area driveway are governed by the Body Corporate Rules. This is very similar to the cross lease scenario above where it is important to read and check your Body Corporate Rules to ensure that there are no impediments to the use of the shared driveway area. For instance, the rules may state that there is no parking allowed on the common area; this could cause issues if you only had one garage and two vehicles – your second vehicle could not be parked on the common area. The Body Corporate is responsible for upkeep and maintenance of the common area, with such costs being met by the Body Corporate levies paid by the owners.

Right of Way Easement

If you have been granted, by easement, the right to use a particular area as a driveway then your rights and obligations are governed by the Easement Certificate and the Land Transfer Regulations. You will be granted the right to go over and along that area on foot or by vehicle. Once again, you can use and enjoy the driveway but cannot obstruct the same in any way. The registered proprietor who is providing you with the right to use that land can not restrict any of those rights by either blocking off access or causing an obstruction. The easement will determine who has the obligation for upkeep and maintenance. Usually, the responsibility will rest with those owners who have the legal entitlement to use the right of way.

Access Lot

If you live in a modern subdivision where you share a driveway with others, it is likely that you own a share of that Access Lot which is recorded on your title. It may show that you own a ¼ share of the access lot if there are four owners using that driveway, or a 1/3rd share if there are three owners etc. The new Property Law Act provision was created due to uncertainty in the past over rights and obligations with Access Lots. It provides that if your Access Lot is or includes a driveway or proposed driveway then each owner has “the right to pass and re-pass over and along the access lot” in the same way as an owner who owns a piece of land which has the benefit of a right of way easement. The obligation to maintain the driveway belongs to those who are the owners of the access lot in proportion to their respective share.

Conclusions

Shared driveways can often lead to disputes between neighbours. It is essential that you understand your rights and obligations when sharing a driveway at as earlier time as possible, preferably before you buy the property.