^^^ This is the exact advice we have had about our gate situation. ^^^ Also that it's important to send that letter so that we have asserted our rights and given fair warning that we would make the gates inoperable in the face of them being installed.
We also understand that it's easier to defend a claim than to prosecute one.
These issues are difficult as the easement wording is silent on the use of gates, so it comes down to the enjoyment of the easement.
Each case will have different issues, but in general an easement is not solely used, by the dominant title owners, but others that need to use the easement, such as family friends, tradesman, utility providers and in a locked gate scenario, the dominant titleholder would need to leave their home or workplace etc to unlock the gate to let the above people in, this is an unacceptable burden.
In a gated scenario, without a lock, can family friends (young kids, elderly) the dominant title holders physically open the gate? Is it an easy process to open the gate? is it an excessively time-consuming process to open the gate? how many times does the gate need to be open and shut in a day? is it a safety issue to Open the gate? ( this could lead to civil action against servient title holder)
I’ve had to take seek a lot of legal advice over easements in my working career and residential situation and the advice I received supported my opinion here, that gates are allowed in some circumstances for rural situations but are normally not allowed in suburban situations as they are an excessive burden to the dominant title holder and the servient title holder will need to take civil action action, to get court orders to have absolute legal right to instal gates.
Each case will have different issues, but in general an easement is not solely used, by the dominant title owners, but others that need to use the easement, such as family friends, tradesman, utility providers and in a locked gate scenario, the dominant titleholder would need to leave their home or workplace etc to unlock the gate to let the above people in, this is an unacceptable burden.
In a gated scenario, without a lock, can family friends (young kids, elderly) the dominant title holders physically open the gate? Is it an easy process to open the gate? is it an excessively time-consuming process to open the gate? how many times does the gate need to be open and shut in a day? is it a safety issue to Open the gate? ( this could lead to civil action against servient title holder)
I’ve had to take seek a lot of legal advice over easements in my working career and residential situation and the advice I received supported my opinion here, that gates are allowed in some circumstances for rural situations but are normally not allowed in suburban situations as they are an excessive burden to the dominant title holder and the servient title holder will need to take civil action action, to get court orders to have absolute legal right to instal gates.
When this:
becomes this:
I don't want to single Tripe out, but for the non-legally qualified folks here - be very careful with your comments, 'throw away' or otherwise. There's a world of difference between telling someone they're fine to commit property damage and recommending a careful consideration of the facts of the situation. As a hint: the second is the way to go.
If you want to know why lawyers are a cautious bunch and don't give absolutes except in the rarest of occasions, it's because the smallest of details can make the biggest of changes to outcome; and they're often the ones that get missed. The particular facts of the matter can make a big change. And because there are usually multiple parties to any matter, 'their' facts may not align with yours. Then you're putting everything in the hands of a judge to make a decision - and the facts he or she relies on may be different to yours.
Law is a bit like meteorology: it's not exact. Unlike meteorologists, however, lawyers get sued if they give an absolute answer and they're wrong.
becomes this:
I don't want to single Tripe out, but for the non-legally qualified folks here - be very careful with your comments, 'throw away' or otherwise. There's a world of difference between telling someone they're fine to commit property damage and recommending a careful consideration of the facts of the situation. As a hint: the second is the way to go.
If you want to know why lawyers are a cautious bunch and don't give absolutes except in the rarest of occasions, it's because the smallest of details can make the biggest of changes to outcome; and they're often the ones that get missed. The particular facts of the matter can make a big change. And because there are usually multiple parties to any matter, 'their' facts may not align with yours. Then you're putting everything in the hands of a judge to make a decision - and the facts he or she relies on may be different to yours.
Law is a bit like meteorology: it's not exact. Unlike meteorologists, however, lawyers get sued if they give an absolute answer and they're wrong.
Rob
Over to you, what case law can you produce that proves gates can be installed on a previously ungates easment in a surburban situation, Whenever the servient title holder wants???
There is nothing illegal about cutting locks or removing gates to a previously ungated easement.
I’ve done it before and guess what nothing happened!!!, The police were called and they did nothing, as they quickly determine its was a civil matter, the Servient title holders, sort legal advice and then did nothing!!!!!!! Because the were most likely advised that they may not win any civil action.
Over to you, what case law can you produce that proves gates can be installed on a previously ungates easment in a surburban situation, Whenever the servient title holder wants???
There is nothing illegal about cutting locks or removing gates to a previously ungated easement.
I’ve done it before and guess what nothing happened!!!, The police were called and they did nothing, as they quickly determine its was a civil matter, the Servient title holders, sort legal advice and then did nothing!!!!!!! Because the were most likely advised that they may not win any civil action.
Oh that is really good to know Tripe.
We've just instructed our lawyer to write a letter telling our servient owner they cannot install gates and we reserve our right to make them unblock access and/or apply for an injunction.
We've just instructed our lawyer to write a letter telling our servient owner they cannot install gates and we reserve our right to make them unblock access and/or apply for an injunction.
Okay. I restricted my research to just this century:
Walker v Espie [2003] NSWSC 559 (18 June 2003)
Trewin v Felton [2007] NSWSC 851 (7 August 2007)
McCrow v Chaplin [2009] NSWSC 965 (27 August 2009) (although the existence of the gate itself was agreed on here - means of access were in contest)
DAVIDSON -v- ELKINGTON [2011] WASC 29 (11 February 2011)
Pattison v Stephens [2015] VCC 1423 (8 October 2015)
Walker v Espie [2003] NSWSC 559 (18 June 2003)
Trewin v Felton [2007] NSWSC 851 (7 August 2007)
McCrow v Chaplin [2009] NSWSC 965 (27 August 2009) (although the existence of the gate itself was agreed on here - means of access were in contest)
DAVIDSON -v- ELKINGTON [2011] WASC 29 (11 February 2011)
Pattison v Stephens [2015] VCC 1423 (8 October 2015)
Someone not exercising a legal right is different to not having rights.
Now as Rob has already mentioned, and as you have acknowledged, the facts around each case are different and can result in different outcomes.
But we are now hijacking the OP's thread and this discussion should move to one of Lucy Lu's threads.
I have devoted time to read one of Your examples
in the Richardson’s case the servient title holder property fronted the public road, yet the court case was for a secondary access at the other side of property that had an easment to another public road.
I struggle to see why An easment was granted in the first place when they are not landlocked
in the Richardson’s case the servient title holder property fronted the public road, yet the court case was for a secondary access at the other side of property that had an easment to another public road.
I struggle to see why An easment was granted in the first place when they are not landlocked
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