Does the property have legal access?

Understanding the difference between physical access and legal access.

Posted 7 August 2023

Written by Jack Howe

Two important terms that property purchasers should be aware of are "legal access" and "physical access". Whilst they might seem similar, they refer to distinct aspects of property ownership that can have significant implications towards the use and value of a property.

The difference between legal access and physical access

Legal access:

Legal access refers to the right or ability of a property owner to access their property uninterrupted via roads or routes that the property owner has the authority to travel over legally. It means a property owner’s ability to reach their property without trespassing over other properties or by travelling over roads or routes that they are not authorised to use.

Physical access:

Physical access, on the other hand, refers to the actual ability to reach a property physically. It involves having a clear and practical pathway, such as a road or driveway, that enables the property to be reached physically. While physical access can often coincide with legal access, having physical access does not mean that a property will have legal access.

Different types of legal access

The most common type of legal access is accessing a property directly from a public road. This occurs when a property is directly adjacent to a public road. Most residential properties in Tasmania have this type of legal access. In some circumstances, access to a property might only be gained by traveling over another privately owned property. For this type of access to be considered “legal”, it would need to be over an easement such as a right of way. For properties that are accessed via crown land or a reserved road, generally an access licence from the Crown is required. Private access licences can also provide alternative forms of legal access.

Issues arising from lack of legal access

Trespass and unauthorised access:

If a property does not have legal access, access to that property will be via an unauthorised route. This may be over a reserved road whereby the Crown hasn’t provided the property owner permission for travel over that road, or over a privately owned property which may amount to trespass.

Development restrictions:

Without legal access, property owners may face restrictions on developing or utilising their land. Local councils and planning authorities may withhold permits for construction or upgrades if the property does not have a proper legal access route. This can severely impact the property's market value and overall potential for use.

Inconvenience and cost:

Properties without legal access may require expensive and time-consuming negotiations with adjacent landowners to establish an easement or right of way. If such agreements cannot be reached, property owners may be forced to explore alternative, costly access options, such as purchasing a strip of land to create a legal access pathway.

Sale and resale challenges:

When selling a property, a lack of legal access can deter potential buyers, reducing the pool of interested parties and potentially lowering the property's market value. Prospective buyers may be reluctant to invest in a property that comes with uncertainties and potential legal complications.

Things you should be wary of

You should always seek legal assistance prior to purchasing a property to determine whether that property has legal access. It is important to be aware that a property may have physical access, but that does not necessarily mean that it has legal access. It is important to check whether there are any access issues further away from the property if the physical access to the property is via multiple different stretches of road. Purchasers should be particularly wary of potential access issues with rural and remote properties.

How we can help

We can assist you by reviewing the access status of a property, and by providing possible solutions when a property does not have legal access.

All material on this site is provided for information purposes only. The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have. If there are any issues you would like us to advise you on arising from this material, please get in touch.