An Apartment with no Access – What are the Solutions?

09/09/2022

Last year Watson & Watson Lawyers were approached by the Owner of an expensive apartment located in a small boutique complex of apartments.  The apartments were below street level.  On the top level there were two apartments, one being our client’s lot and the other lot owned by the neighbour.  The two apartments are accessed by a bridge from the street to the apartments.

Our client had former solicitors and a purchaser’s agent assisting at the time of the purchase.  All seemed to go well and the purchase was completed and our client moved into her new home.

After some time, our client was made aware that there was an issue concerning access to the apartment as the access available over the bridge which led to the front door of her apartment, was only available by passing over part of the neighbour’s adjacent lot.  It became clear that there was likely to be a dispute which could lead to denial of access to our client’s apartment.

Before we were instructed, there was a suggestion to our client that the matter could be resolved by the Owners Corporation granting access by way of a By-Law.  Any access over the neighbouring lot requires the consent of the owner of that lot.  No by-law can overcome this issue. 

At that time, we advised our client as to the possibility, and probability and likely costs of obtaining a right of access by way of a registered easement.  Such easement required the consent of the adjacent owner or Court Order.

Often we find that the negotiations in relation to what is appropriate escalate into a lack of co-operation.  Each person often believes they have right on their side.  In such circumstances, there needs to be very careful consideration as to the appropriate approach and possible and probable alternatives available to each person involved so as to achieve an appropriate outcome for our client.

Notwithstanding that our client had been aggrieved in relation to the process of purchasing her apartment, our client was accepting and took the view that resolution was the appropriate course.  Our client agreed to offer compensation for the use of part of the neighbouring lot which was required for access to our client’s lot.  Our client agreed for a valuation to be undertaken and payment of the valuation (rather than a Court dispute) and the necessary fees to register the easement.  This approach offered the appropriate compensation and costs of the neighbour together with a better outcome sum between two close neighbours.  We considered and advised of a few alternative options and likely costs consequences.

We have seen on many occasions where such neighbourhood issues escalate out of control often as a result of relatively minor differences.

One problem is that the person seeking the indulgence of an easement is the person who almost always bears the costs of the proceedings and in many cases there is uncertainty as to the outcome.  The person who is asked to provide the indulgence by way of an easement also will suffer consequences as a result of the dispute.  Even though the person who seeks and obtains from the Court an easement most often is entitled to the costs of the proceedings, those costs do not cover the actual financial costs of the proceedings.  Certainly those costs do not cover the emotional costs of proceedings and the associated issues that arise following the proceedings notwithstanding the outcome. 

In our client’s matter, if we had not achieved an amicable settlement expeditiously, her costs would have escalated to $100,000.

At Watson & Watson we are involved in many disputes pertaining to access and rights of way and similar issues and most often, we achieve a resolution.  The earlier you seek advice and know your rights, obligations and risks, the better.  Often we hear statements and receive correspondence which are incorrect and that of itself does not help the situation.  We recommend that at an early stage before any proceedings are commenced, it is helpful to try and resolve any misunderstanding. 

If you find yourself in similar or other difficult situations, please contact the experienced Solicitors at Watson & Watson Accredited Specialist Commercial Litigation specialising in building and construction and strata issues and other commercial matters by contacting Richard Watson Principal or his Personal Assistant Shereen Da Gloria to discuss your matter and seek the appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.