QLD Can I block an easement

[Andras Biro]

Hi,
We have an easement on our lot. Our house is the top one and a long driveway coming up to the house from the main road turns and running through in front of the neighbors yard as it reaches ours. The easement gives right to the neighbors to access to their lot through their entry point. And it says I can use it for any purpose but keep their right to access. As they built a new "illegal" driveway (as the easement clearly says that they don't have the right to build any other or use it for any other purpose than access to their lot through the entry point) can I block the easement after their original entry point?
Looking forward for the answers,
Andras

 

[Andras Biro]

Or can I report them trespassing?

 

[Gorodetsky]

Hi Andras,
I'm not a solicitor.

You need to be pretty freaking certain before blocking the easement...or they could litigate for a lot of money.

Almost always an easement includes ancillary rights...which usually include being able to reasonably maintain and upgrade the surface....this is held to be part of the right of access, even if it isn't explicitly written in the easement grant. Easements are case by case, so yours might be the exception, but I'd be surprised. I suggest you Google "easement ancillary rights". The kemp-strang link is informative.

You've said "As they built a new "illegal" driveway (as the easement clearly says that they don't have the right to build any other or use it for any other purpose than access to their lot through the entry point)"

You might want to post the exact wording for the Solicitors on this forum to read...

Now, if they have built inside your land, but outside the easement, they can't do that.
Or if what they built unreasonably interferes with the other people who use the land, that's also not right. Example: maybe they put deep gutters on each side of the driveway which stop you from pulling off onto your land on either side, they have interfered with your use of the land.

Regards
Gorodetsky

 

[Rob Legat - SBPL]

Consideration of any easement requires inspection of:
1. The grant of easement document registered with the Department of Natural Resources and Mines; and
2. The plan showing the easement.

What can be done, and where, can't be determined until these are checked.

 

[Tripe]

I'm guessing from your description, you have an access road that passes on the side of your neighbors block, your neighbor has a right of carriage easment over a section of your access road that they use to access their property from a public road, now they have built a new driveway access that is before the old driveway access? And they now, don't need to use all the easment?

Point 1: you or a previous owner of your property received monetary compensation for the granting of the easment over the burden section of your land

Point 2: you don't have unrestricted use of this section of land and you can only use it in a mater that doesn't affect the neighbors enjoyment of Thier easment

Point 3 the neighbor can access Thier property from any part of Thier easment. They can cut exssitng fences that are common to their block and easment to create a new access point.

Point 4 they are entitled to maintain the surface of the easment such as installing a driveway to safely access Thier property

Point 5 if the new driveway turnoff is now only 50% along the existing easment and they don't use the other section, you can not obstruct the remaining section.


If you do anything that stops them enjoying reasonable access with any vehicles etc, in any section of the easment then you can be sued.

 

[Rod]

Not sure about points 3 and 5. What is your source of information?

I vaguely remember reading a case along similar lines and a fence was allowed up as long as reasonable vehicle access was maintained to the garage/carport. Think a woman wanted access to her garden from the easement and it was refused. But I could be wrong.

 

[Tripe]

Point 3
Basically there is no prescriptive requirement to say where you can enter or leave an easment, it's just a right to pass through the easment.

The most common situation is to leave a public road, enter an easment to access your land (house)

On occasions I leave my house and access the easment and then I travel 40m and turn into one of my paddocks, I can leave this paddock and re-enter the easment and travel another 40m and access the next paddock, then I can leave no:2 paddock and re enter the easment to head back to my house.

At no stage did I use the easment to access the public road.!!!!

In my particular situation, I have 5 points of entry to my easment because I have several paddocks, that border the easment.

A gate (or even a hedge or cattle grid) is viewed as a fence under the boundary act, so if you cut a fence and put in a gate, it's still a fence.

A servient title owner cannot obstruct any point that a dominate title owner chooses to leave Thier land to enter the easment or exit the easment to access Thier land.

The only restriction would be if there is a particular local council requirement.

Point 5
An easment is a property tiltle of defined proportions, that has a unique title number and survey plan and is created by a land surveyor, it cannot be extinguished without the dominant title owners consent, if you choose not to use all the length that's fine, but you and your guests retain the right to enjoy the unused part when ever you want free of reasonable obstructions and free of danger to access Your land.

 

[Rod]

Yours is a special case requiring multiple points of access. Not all easements work this way.

The OP requires a lawyer to look at the facts of his situation to work out what can and can't be done. Not really something that can be answered properly in a forum.