Right of Carriageway Easements Explained

A right of carriageway is one of the most common easements found on Australian residential titles, and one of the easiest to misunderstand. It grants the owner of one property a legal right to travel across a defined part of a neighbouring property, usually to reach a driveway, garage or block of land that would otherwise be landlocked. Because it sits quietly on the title until someone needs to rely on it, buyers often only think seriously about a right of carriageway once they are trying to park a car, extend a fence, or work out who is responsible for resurfacing a shared strip of concrete.

What a Right of Carriageway Actually Grants

A right of carriageway is a type of easement, meaning it is a registered right to use part of someone else's land for a specific, limited purpose, in this case passage by vehicle or on foot. It does not transfer ownership of the strip of land it covers. The owner of the servient land still owns and pays rates on that strip, but must allow the benefiting owner to pass over it undisturbed. This is quite different from simply agreeing informally with a neighbour to use their driveway, which creates no lasting right and offers no protection if the property changes hands. A registered right of carriageway typically also carries an implied right to do what is reasonably necessary to make the access usable, such as basic repairs to the surface, though it stops well short of allowing either owner to unilaterally widen, relocate or upgrade the easement without agreement.

Dominant and Servient Land

Every right of carriageway involves two properties: the dominant tenement, which receives the benefit of access, and the servient tenement, which carries the burden. Understanding the difference between a dominant and servient tenement matters here because both roles pass automatically to future owners on registration. Buy the dominant property and you inherit the right to use the carriageway. Buy the servient property and you inherit the obligation to allow that use, whether or not it was explained to you clearly before you signed.

How It Appears on Title and Plan

A right of carriageway is created by registering a dealing, or by including it on a deposited plan or section 88B instrument when land is subdivided, and it appears on a current title search and the associated plan as a defined, measured area rather than a vague verbal understanding. According to NSW Land Registry Services' guidelines on easements, the land having the benefit is described as the dominant tenement and the land having the burden as the servient tenement, with the easement's exact width and location fixed on the plan rather than left open to interpretation. Buyers should always sight the plan itself, not just the wording on the title, since the plan shows precisely where the right of way runs.

Maintenance, Cost-Sharing and Restrictions

Unless the easement instrument says otherwise, there is no automatic legal obligation for the servient owner to maintain the surface, and no automatic right for either party to fence off or obstruct it. Disputes commonly arise over resurfacing costs, gates, parking within the easement area, or landscaping that narrows the usable width. Some easement instruments include specific maintenance-sharing clauses; many older ones do not, which leaves cost-sharing to informal agreement between neighbours unless a disagreement forces the issue into mediation or a tribunal. It is worth reading the full wording of the easement, not just its existence on the title search, since some instruments do set out proportional cost-sharing or specify who is responsible for particular repairs, and relying on assumptions rather than the actual document is a common source of neighbour disputes.

Common Issues Buyers Should Know About

Encroachments are a frequent problem, where a shed, retaining wall, garden bed or even part of a building has been constructed over the easement area, sometimes long before the current owner purchased the land. Because the registered easement generally takes priority over later structures, a buyer who discovers an encroachment after settlement can face costly removal or difficult negotiation with the benefiting owner. Checking the plan against what physically exists on the ground, ideally with a current survey, before exchanging contracts is the most reliable way to avoid this. Another common issue is a locked gate installed across a shared right of carriageway without the other party's agreement, which can obstruct a legal right of access even where no permanent structure is involved, and is a frequent source of neighbour disputes that end up before a court or tribunal.

Changing or Removing a Right of Carriageway

Because a right of carriageway benefits a specific property rather than a person, it cannot simply be cancelled because one owner decides they no longer want it. Variation or removal generally requires agreement between both the dominant and servient owners, formal registration of that agreement, or in some cases an application to a court or tribunal where the easement is obsolete or no longer serves its original purpose. This is worth understanding early if you are buying a property hoping to eventually build over or eliminate an existing right of carriageway.

What Your Conveyancer Checks

When you are buying or selling a property affected by a right of carriageway, your conveyancer will confirm exactly where the easement sits relative to existing structures, check whether any maintenance or cost-sharing terms are recorded against it, and flag anything resembling an encroachment before you are locked into a contract. This is especially important for a residential purchase involving a battle-axe block or rear lot, where shared access is often the only practical way to reach the property.