Good neighbours and the law of the land

LAW BRIEFS

CCH New Zealand


A common reason for the tragedy of neighbours falling out seems to involve rights of way across land, as shown in two recent cases.

A neighbour had a legal right of way over a landowner's property. However, the right of way had never been formed - it was a "paper" right of way.

The landowner had at one stage built a private roadway that was used for access to the back of his farm, and for access to some lots subdivided from his farm. The roadway was in the general area of the right of way but not exactly coinciding with it.

Occasionally the neighbour used the roadway, but because it did not quite reach his property, he had to cross the landowner's land on an extension of the roadway before reaching his own land.

When the neighbour subdivided his property, he wanted to ensure the new lots had access. Neighbour and landowner negotiated to upgrade the roadway and extend it to the neighbour's land. The landowner was concerned about extra use of his roadway and possible commercial use.

Both parties were unable to agree about the terms of use of the roadway, and at one stage, the landowner fenced off his roadway so that the neighbour was unable to use the extension to access his land.

The neighbour eventually decided to build the right of way along the paper route. Parts of it crossed the existing roadway and parts of it ran parallel to it. The cost of building the right of way was $41,000. The cost of upgrading the existing roadway would have been only about $14,000.

The neighbour then applied for a court order forcing the landowner to contribute to the cost of the new right of way - but the landowner did not think he should have to contribute anything.

He thought there had been no need for the right of way to be built and he had not used it, but the court ordered the landowner to make a small contribution to the cost of building the new right of way.

All the relevant factors were taken into account by the court, including who was benefiting from the right of way and the need to build it. The court considered that the neighbour was justified in building the right of way, partly because the landowner had fenced off the roadway, preventing the neighbour from accessing his property.

Even if the landowner might not be using the right of way, he had the right to, and some of the purchasers from his own subdivision were regularly using at least part of it.

Another case involved neighbouring farm owners and the use of a farm track.

The track over one farm provided practical access to the back of the neighbour's farm. The neighbour had used the track for many years and had spent time and effort maintaining and tidying up the track.

When he decided to plant the back part of his farm in pine trees, he wanted to formalise his right of access. However, the landowner refused to grant him a formal right of way. The relationship quickly deteriorated and the landowner refused the neighbour access to the farm track.

The neighbour went to court, claiming that he had a right of way over the farm track. However, he was unable to provide sufficient evidence to prove his claim. The court said that he had never had more than a licence to use the track for access to his property.

It can be inferred from these cases that a dispute between neighbours is not necessarily resolved by deciding legal issues. For instance, apart from the expense of the first case which may well have been much higher than the amount awarded, there could be continuing issues about the cost of maintenance of the right of way.

Also, it seems unlikely that the decision would have restored any goodwill between the neighbours - despite the fact the neighbouring landowners in the second case were brothers.

* CCH New Zealand Ltd is a tax, business and employment law publisher based in Auckland. For further information, visit the CCH website at www.cch.co.nz
or phone 0800 500 224.