August 05 2010
How can you get reasonable access?
You own a secluded property amongst lush greenery in a hillside suburb. The only access is via a steep pedestrian path. This was a charming feature when you bought the property but you are not as fit as you used to be and would now like vehicular access. You have heard that the court can grant an order giving you a legal right to access the land through the neighbour’s property. But will you get it?
What is landlocked land?
Landlocked land is a piece of land to which there is no reasonable access. The Property Law Act 2007 defines ‘reasonable access’ as physical access that is reasonably necessary for the owner or occupier to use it for the purposes authorised under the Resource Management Act 1991.
Clearly, if people cannot get onto their land then it has no reasonable access. But ‘reasonable access’ does not necessarily include vehicular access or, in some cases, even pedestrian access. While the access must be reasonable, it does not have to be the best that could be achieved. Whether a particular piece of land has reasonable access will always depend on the particular circumstances and will be determined within the context of the locality, topography of the area and modern requirements.
The Court of Appeal recently held² that a property in suburban Wellington which had access solely by way of a steep, badly lit walkway in disrepair was not landlocked. In that case, vehicular access was found to be primarily a matter of convenience for the owners. The walkway provided reasonable access to the land in the circumstances.
It has also been held that access by sea can be reasonable. For 46 years, a licensed tourist lodge only had sea access. The court held³ that the property was not landlocked, even though there was no pedestrian access or vehicular access.
What can you do about it?
If you believe that your land is landlocked, you can apply to the High Court for an order granting you reasonable access to your land. If the court decides that you should be granted access, then this can be achieved by:
- Giving you a legal right to use an area of the neighbour’s land (an ‘easement’) to access your land, or
- Ordering that part of the neighbour’s land be transferred into your name.
In deciding whether to grant the order, the court will consider:
- The nature and quality of the access you had to your land at the time you acquired it
- How your land became landlocked
- Your conduct regarding the issue and the conduct of your neighbour, including any attempts you may have made to negotiate an agreement, and
- The hardship that you would suffer if the court did not make the order, compared to the hardship that would be caused to anyone else if the court made the order.
Other factors that will be taken into consideration include any existing access, its state of repair and the cost of upgrading and maintaining it.
If the order is made, you will usually have to pay compensation to the neighbour. You may also need to put up fences at your cost or pay other associated expenses.
When buying property, it is important to check what legal access rights you have to it and whether this will be suitable for you in the long term. You may find that your land has reasonable access and is not landlocked, even if you have to hike, climb or take a jet boat ride to get there.
² Murray v BC Group (2003) Ltd  NZCA 163
³ Kingfish Lodge (1993) Ltd v Archer  3 NZLR 364