In geographic terms ‘landlocked’ can describe a country with no coast, surrounded by other countries or lakes, lagoons or harbours that are completely surrounded by land with no access to the sea. To be landlocked in that sense, occupiers or users need to rely on the goodwill of neighbours to allow access across their land or territory. In real estate being landlocked refers to a property that has no direct access to a public street or thoroughfare so the only way on or off the property is to cross land owned by someone else. In this situation it is usually the case that a landlocked property owner gains access to and from the property via a legal authority known as a right of way or easement for access. Properties often become landlocked after a subdivision of a larger property, which was common in years gone by with rural properties. Farmers would buy and sell portions of land to farm or graze animals on, using their own land to gain access or by having a simple agreement with a neighbour for the use of a road or track across their property. This could be fine while the parties are on good terms with each other or were privy to the deal themselves but an informal agreement between neighbours does not constitute a legal easement. Problems arose when the portion was sold as the rights do not automatically go with the sale of the land, such arrangements aren’t transferred unless there are formal easements or rights of way created and registered on title. The registration of the right gives the owner of a landlocked property the right to cross someone else’s land. I had a matter recently where the RMS, as they are now called, wanted to acquire part of someone’s land for future use to widen a highway. They only wanted the front portion. Problem was an over judicious senior staffer, a bit troubled by all the letters from the owner, refused to give a right of way necessary to access the back portion of the land,essentially leaving the property landlocked. In this case the Supreme Court can make an order under Section 88K of the Conveyancing Act and will do so if the easement is reasonably necessary for the effective use or development of the land. Council will not permit construction of a dwelling on landlocked land. This was similar in the case of Samy Saad and Canterbury City Council a number of years back, when the Council was forced to give him access. When we review Contracts for clients purchasing property it is part of our review of title to make sure legal and practical access if available.
Give us a call at Johnston Tobin Solicitors if you want to make sure your property transactions are done correctly.
