I didn't want to hijack sLou's question so posting this separately. This matter is part of a long drama about easements.
A gate already exists at the entrance of our easement however it is stuck open and has not been operational for the full 6 years of the existence of the easement. The benefited land owner is required to pay a % of management and maintenance of the easement but the burdened land owner is ignoring much of the deed in making their calculations and are overcharging. Benefited land owners have stopped paying. Burdened land owners are now commissioning the gates and the manager has explicitly told a benefited land owner she will not provide information about access through the gates until invoices are paid. We feel the gates are demonstrably being commissioned to intimidate benefited land owners into paying incorrect invoices for fear of being locked out.
The deed contains a "conclusive evidence clause" and also allows for the suspension or termination in the case that the benefited land owner fails to comply with their requirements under the deed. Essentially they can charge what they like, the presentation of an invoice is conclusive evidence of the debt, and failure to pay can result in termination of the easement.
The only dispute resolution offered by the deed is arbitration for "all disputes, questions and differences arising between the benefited land owner and the burdened land owner concerning this deed".
So, the burdened land owner can invoice what they like, lock us out and our only option is to pay a large amount of money for arbitration.
The deed would seem an unfair contract but fails that on several counts - first the date it is entered into and secondly it is not a standard form.
Our preliminary advice is that the gates present unreasonable restriction of the "full right and liberty" required by the deed as well as the right of carriageway required by the easement created by the deposited plan (under the TLA). It becomes particularly unreasonably when we can demonstrate the gates are being used to intimidate us into paying incorrectly calculated invoices. The legal advice was to put the burdened land owner on notice that any attempt to restrict our access would be met by us physically disabling the gate so as to ensure our free access to the easement. In the event of the gates restricting access, our advice was to carefully make changes such that the gates are no longer blocking access. No unreasonable damage to the gates is allowed by such action.
Our understanding is that where an easement is created by both a deed and a plan, the easement created by the plan supercedes the deed (TLA) if the two conflict. This is the case for our easement. In was first created by a deposited plan and then by the instrument of the deed. The plan requires right of carriageway which cannot be denied by any part of any deed for any reason.
Appreciate your thoughts.
Here is the deed: Dropbox - deed of easements for K and R.docx
A gate already exists at the entrance of our easement however it is stuck open and has not been operational for the full 6 years of the existence of the easement. The benefited land owner is required to pay a % of management and maintenance of the easement but the burdened land owner is ignoring much of the deed in making their calculations and are overcharging. Benefited land owners have stopped paying. Burdened land owners are now commissioning the gates and the manager has explicitly told a benefited land owner she will not provide information about access through the gates until invoices are paid. We feel the gates are demonstrably being commissioned to intimidate benefited land owners into paying incorrect invoices for fear of being locked out.
The deed contains a "conclusive evidence clause" and also allows for the suspension or termination in the case that the benefited land owner fails to comply with their requirements under the deed. Essentially they can charge what they like, the presentation of an invoice is conclusive evidence of the debt, and failure to pay can result in termination of the easement.
The only dispute resolution offered by the deed is arbitration for "all disputes, questions and differences arising between the benefited land owner and the burdened land owner concerning this deed".
So, the burdened land owner can invoice what they like, lock us out and our only option is to pay a large amount of money for arbitration.
The deed would seem an unfair contract but fails that on several counts - first the date it is entered into and secondly it is not a standard form.
Our preliminary advice is that the gates present unreasonable restriction of the "full right and liberty" required by the deed as well as the right of carriageway required by the easement created by the deposited plan (under the TLA). It becomes particularly unreasonably when we can demonstrate the gates are being used to intimidate us into paying incorrectly calculated invoices. The legal advice was to put the burdened land owner on notice that any attempt to restrict our access would be met by us physically disabling the gate so as to ensure our free access to the easement. In the event of the gates restricting access, our advice was to carefully make changes such that the gates are no longer blocking access. No unreasonable damage to the gates is allowed by such action.
Our understanding is that where an easement is created by both a deed and a plan, the easement created by the plan supercedes the deed (TLA) if the two conflict. This is the case for our easement. In was first created by a deposited plan and then by the instrument of the deed. The plan requires right of carriageway which cannot be denied by any part of any deed for any reason.
Appreciate your thoughts.
Here is the deed: Dropbox - deed of easements for K and R.docx