The most common questions we receive from experienced property developers relate to easements. The right to use a strip of land under or over a neighbouring property, whether this be for drainage, construction supports or rights of way, can make or break a development project.
In this article, we explain how a property owner can use section 88K of the Conveyancing Act 1919 (NSW) to secure an interest in a neighbouring property to assist with a development project.
When section 88K was introduced, parliament noted that private development can be in the public interest, especially if that development creates new housing stock or new economic opportunities. The aim of the section was to avoid situations where neighbours could block developments by refusing to grant reasonable access rights.
In successful section 88K applications, the court may, in its discretion:
The Court will consider the following questions when determining whether to impose an easement:
Of course, it is important to remember that section 88K easements are just one pathway for developers to secure access rights.