Right of Way on Property: Shared Driveways and Your Rights

What is a right of way on a property?

A right of way on a property is a right for someone other than the owner to cross part of the land, usually along a driveway or path, to get to their own land. On a residential title it is almost always an easement that benefits a neighbouring lot, such as a rear or battle-axe block that has no other street frontage.

You may come across three kinds of access arrangement:

• A registered right of way. An easement recorded on the title and shown on the plan. It binds and benefits future owners. This is what most people mean by a right of way on property.
• A public right of way. A road, laneway or public path that the public can use. These are usually controlled by the council or the state rather than by neighbours.
• An informal arrangement. A neighbour simply letting you use their driveway. This is a personal permission that can generally be withdrawn and usually ends when either property is sold.

This page covers how a registered right of way works day to day. For the legal definition and how it is recorded on title, see our guide to right of carriageway easements, and for every other kind of easement, our guide to easements on property.

Is an easement a right of way?

A right of way is one kind of easement, but not every easement is a right of way. An easement is any right over someone else's land for a particular purpose. A right of way is the easement that gives a right of passage.

Other easements give different rights entirely, such as running a drainage pipe, power line or sewer through the land, and do not let anyone walk or drive across it. In NSW a right of way usually appears on the title as either a right of carriageway, which covers vehicles and people on foot, or a right of footway, which covers people on foot only. Other states use names such as right of way, carriageway easement or access easement for the same idea.

The property that uses the right of way is the dominant tenement and the property it crosses is the servient tenement. Our guide to dominant and servient tenements explains how those roles pass to new owners.

What are your rights and the other owner's?

Both owners can use the right of way, but for different reasons. The neighbour who benefits can pass over it to reach their land, and the owner of the land can use it in any way that does not substantially interfere with that passage. The specific easement terms override the general position, so always start with the instrument that created it.

Can a neighbour block a right of way, park on it or put up a gate?

No one can block a registered right of way. The test is whether something substantially interferes with the reasonable use of the way, and blocking it outright clearly does.

Blocking

Parked cars, trailers, building materials, rubbish bins left across the driveway or a skip bin can all interfere with access if they stop the other owner getting through. A one-off delay while a removalist truck is loaded is usually treated differently from a car left in the way every evening. Structures such as fences, carports, garden beds and retaining walls built into the easement area are a more serious problem, because they are permanent.

Parking

A right of way is generally a right to pass and repass, not a right to park. Unless the easement terms give a parking right, the neighbour who uses the right of way should not leave vehicles on it, and the owner of the land should not park where it blocks passage. Stopping briefly to load or unload is commonly accepted where it does not stop the other owner getting through.

Gates

A gate across a right of way is not automatically unlawful, but it must not substantially interfere with access. A locked gate where the other owner has no key, or a gate that is hard to open with a vehicle, is likely to interfere. If a gate is needed for security, pets or children, agree on it in writing and make sure everyone entitled to use the way has a key or code.

Limits on the neighbour too

The neighbour who benefits must stay within the defined area and use it to reach their own land. They cannot use it as a car park, a storage area or a route to some other property that the easement does not benefit.

Who maintains a shared driveway with a right of way?

The easement terms decide who maintains it. If they say nothing, there is usually no automatic duty on the owner of the land to repair the driveway, and the neighbour who uses it can generally do the work reasonably needed to keep it usable, at their own cost.

Some instruments set out how repair and resurfacing costs are shared, and in NSW the parties to an easement can register a positive covenant for maintenance and repair of the easement site. Where nothing is recorded, a short written agreement between neighbours about cost-sharing, drainage and who arranges the work prevents most arguments. It also helps future buyers, who will ask about it.

What are your rights with a deeded right of way?

"Deeded right of way" is a term used mainly in the United States for a right of way written into a property deed. In Australia the equivalent is a registered easement: a right of way created by a registered plan, transfer or other instrument and recorded on the Torrens title. Your rights are the ones set out in that instrument, or in the standard statutory wording where the instrument just uses a short name such as right of carriageway.

Deeds still matter in some places. In NSW, land that has never been converted to Torrens title is called Old System land, and an easement over it is granted by deed. Our guide to Torrens title and Old System title in NSW explains the difference.

A right of way that is not on the title is harder to rely on. A court may recognise one based on long, open use, or one that was implied when land was divided, but the NSW Torrens register does not record such easements without an instrument or a court order confirming them. If your access depends on a right of way that is not registered, get advice before you buy or sell. Long use of land can also raise questions of adverse possession, which is a different claim to ownership rather than use.

How are right of way disputes resolved?

Most right of way disputes are resolved by checking the easement terms and plan, raising the problem in writing, and using a free mediation service before anyone goes to court. Court is the last step, and the forum depends on the state and on what you are asking for.

1. Check the documents. Get the title, plan and creating instrument so both sides are working from the actual terms and the surveyed location.
2. Raise it in writing. Describe the problem, refer to the easement and suggest a fix, such as moving bins or providing a gate key.
3. Mediate. Community mediation services are free and can be used for neighbour disputes.
4. Apply to a court or tribunal. If agreement fails, a court can declare and enforce the right, and in some cases change or remove it.

Right of way problems often overlap with fence and boundary questions. Our guide to boundary disputes covers those, and our guide to encroachments covers structures built over the line.

Buying a property with a right of way driveway

Before you buy a property with a shared driveway, confirm the access is registered, check exactly where it runs, and ask whether there have been disagreements about it.

• Read the title, plan and easement terms through a current title search.
• If you are buying the rear lot, make sure your access is a registered easement and not just a neighbour's goodwill.
• Compare the plan with what is on the ground: fences, carports and gardens sometimes sit inside the easement area.
• Ask the seller about maintenance arrangements, gates, keys and any past disputes.
• Check whether your plans, such as a new garage or front fence, would affect the way.

Your conveyancer reviews these documents as part of a residential purchase and can raise issues with the seller before you are committed.

Frequently asked questions

This guide is general information, not legal or financial advice. Rules, fees and timeframes change and differ between states, so confirm your own situation with a licensed conveyancer, settlement agent or solicitor.