LEGAL ‘TRESPASS’?  A neighbour in certain circumstances has the right to access adjacent land.  In New South Wales, most notably these rights are available as follows:

• A provision in the Conveyancing Act allows a landowner to apply for an easement over neighbouring land in certain circumstances without being held to ransom by the neighbour to prevent development from being unreasonably blocked.  This usually suits and assists developers, but it isn't solely restricted to them.  There are conditions of course, and if a solution can’t be negotiated, the claimant can make an application to the Supreme Court.
   

• Since 2001, landowners have also had the benefit of the Access to Neighbouring Land Act (2000).  Its intention is to allow landowners to maintain, repair and develop their homes and properties so as to avoid conflict. This Act permits a landowner to obtain a one-off temporary right of access to their neighbour’s land without committing trespass. Applications under this Act can be made in the Local Court.

See the further information about acquisition of land by NSW government authorities.

If you’re an intending applicant, or a landowner who is trying to prevent unlawful, unreasonable or excessive access to your land and need advice, call us for more information or to see if we can help you.

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JOINT TENANTS - SEVERING IT. (These short notes do not generally apply to matters involving Family Law).  Most married and de-facto couples that purchase real estate property together, do so as joint tenants.  That is not to say that others can’t do so too.

 

Where there’s a joint tenancy, ownership of the property brings with it a right of survivorship - that is, on the death of one of the owners, the share of the deceased goes to the surviving owner(s).

This right of survivorship takes precedence over what your Will might say.  Take this example of a father and son who originally purchased a property together as joint tenants.  Father's share in the property is his only significant asset and because of this, father makes a Will giving all his property, on his death, to his wife.  Problem is, as he held his share as a joint tenant, on his death his share automatically transfers to the son, the other joint tenant, notwithstanding that is against his wishes as stated in his Will.

There are other examples of unintended consequences of holding a property as a joint tenant.  Often this can happen because your circumstances have changed. 

When a joint tenancy is ended, the property is still held by the same owners, but they hold it as tenants-in-common in equal shares.  In this case, if one party dies his or her share is disposed of according to his or her Will and does not automatically transfer to the other co-owner.

A joint tenancy can be severed without the consent of the other joint owner.  If you need advice about your joint tenancy, call us for more information or to see if we can help you.

 

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