This month we had two, not one, removal of easements / roads off title for non-use. In both cases the carriage way easement and the road were redundant. Both were created many years ago. Both the reasons for their creation was not obvious. Both are blots on title. And both affected future use of the clients’ properties.
Whilst there are various mechanisms for removing roads and easements (for example the Local Government Act, Subdivision Act, Planning laws) there is another option to be considered using Section 73 and 73A Transfer of Land Act. The grounds for removal under Section 73 are the easement has been abandoned or extinguished. Whilst there may be a technical difference between abandoned and extinguished, in effect you have to provide evidence of non-use for 30 years.
In the Richmond case the carriage way easement was 3’6” wide and the only party for whom had a benefit was the neighbour yet had no utility value to them. Yet was a big problem for our client to use and build over this part of the land affected by the easement.
In the Bentleigh case the client owned 2 adjacent lots: Lot 1 and Lot 2. Lot 2 is encumbered by a Drain which could never be built on but part of Lot 1 was crossed by a 10’ Road across the middle of his property. In this case application we made the Application for Removal Of Easement under s73(1) and s73A of the Transfer of Land Act Victoria. As with the Richmond case, the land is dead land and cannot be built upon or re-developed until the Road encumbrance has been removed. Not unlike a s60 Adverse Possession applications you need unequivocal proofs of non-use, abandonment and extinguishment.
If you have a situation you want to discuss feel free to read up on adverse possession or easement removal in Victoria and make an obligation free online inquiry at Hayton Kosky Adverse Possession