More and more often we are having our clients ask us for advice about shared driveways. With the increased pressure on housing we are not surprised about this, as shared driveways are becoming more common.
It is important to understand what your rights and obligations are if you share a driveway, or if you are looking to purchase a property with a shared driveway, as often disputes can arise between neighbours who share a driveway.
There are different means by which driveways are shared depending largely on the types of titles involved.
Right of way easements
These are the most common form of shared driveways, and provide one or more property owners with the right to use a defined part of another property owner’s land for access to and from their own property.
Sometimes the easement instrument that is registered both on the title to the land that has the benefit of the right of way and the title to the land the right of way is subject to, will set out specific terms and conditions for using the right of way, however more commonly the rights and obligations are those implied in Schedule 5 to the Property Law Act 2007 and Schedule 4 to the Land Transfer Regulations 2002.
These implied terms provide that the right of way is to be kept clear of obstructions, that the right is exercisable with vehicles, machinery and equipment of any kind, that the right extends to agents, contractors, employees, invitees, licensees and tenants, and importantly how the costs for repairs and maintenance of the right of way are to be shared. In respect of costs, unfortunately the Act and the Regulations differ in their wording, with one providing for the costs to be shared equally between the users, and the other providing for “reasonable contributions.” Often reasonable contributions should fairly mean equal sharing, however that may not always be the case, especially where one not everyone uses all parts of the right of way.
Shared driveways in cross lease properties
There are many cross lease properties particularly in Auckland, and shared driveways are commonplace for such properties. Often the driveway will be common area, meaning area owned by all properties that are in the same cross lease development. The rights and obligations for such shared driveways will be set out in the leases registered on the titles to the properties. The costs of repairs and maintenance are usually equally shared.
Shared driveways in unit title properties
The shared driveways in unit title properties are usually called common areas, and the body corporate is responsible for the maintenance and repair of the driveway. The costs will be included in the body corporate levies, and the rules for using the common area driveway will be part of the body corporate rules that are usually quite strict.
Sometimes in developments where many owners will be using the driveway, the developer has created an access lot, and each owner who requires the use of the driveway to access their property owns a share in the access lot, and that share is shown on the title to the property. Usually the rights and obligations of access lots are covered by the implied terms in the Act, and “reasonable contributions” to repairs and maintenance is the terminology used.
Speak to us
Before you purchase a property with a shared driveway, or if you own a property with a shared driveway and want specific advice on what your rights and obligations are, please get in touch with our property law experts.
Disclaimer – this article prepared by Sarah Paterson is intended to provide a general overview of the area of law only. It is not exhaustive, does not purport to cover all details and should therefore not be relied upon exclusively or be construed as personal advice.