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QLD Clarification on Easement Access and Conditions

Discussion in 'Property Law Forum' started by tmbrjr, 2 August 2016.

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  1. tmbrjr

    tmbrjr Member

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    Hi,

    My property is accessed by an easement, which essentially serves the purpose of being a driveway. The easement schedule states that all persons nominated by both myself (dominant tenement) and my neighbour who owns the easement (servient tenement) can use the easement at all times according to the following 3 conditions;

    A - for the purpose of carrying water to the dominant tenement from a nearby creek.

    B - for the purpose of providing infrastructure to the dominant tenement (i.e. gas, electricity telephone etc).

    The third condition C is where I would like some clarification. This condition states that all persons may use the easement in any manner (i.e pass, repass, laden or unladen etc) , "...and for all purposes whatsoever connected with the use and enjoyment of the dominant tenement..."

    These words imply to me that the use of the easement can only occur if persons are visiting/using my property, being the dominant tenement. The current situation is that the easement is being used by my neighbour (servient tenement) to access two dwellings located past where the easement ends at my property. This has resulted in a lot of passing traffic and increased wear and tear on the easement (gravel driveway in a rural setting).

    The previous owner of the servient tenement never used this easement as there are alternative roadways upon the servient tenement to access the main road. It is simply a matter of convenience for the neighbour to use the easement to access his properties.

    I hope that the inclusion of the words quoted above in the easement schedule mean that the easement can only be used to get to my property (dominant tenement) and my neighbour must use an alternative to go to and from his properties.

    Thanks for your time and consideration of this issue.

    Regards,
     
  2. Rod

    Rod Well-Known Member

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    The conditions are listed to protect your rights. The conditions do not act to restrict the rights of the owner of the land.

    The condition you bolded is to ensure the other owner cannot stop people visiting you.
     
  3. tmbrjr

    tmbrjr Member

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    Thanks for your response, Rod.

    The use of the words I highlighted seemed to me to specifically refer to the fact that yes, anybody can use the easement, provided it is in relation to serving or using the dominant tenement. Without those words, then I understand that the grantor (neighbour) can use the easement to pass through going about his business, but having a phrase explicitly say in connection with the use and enjoyment of the dominant tenement made me think (perhaps hopefully) otherwise.

    The flow effect on from this scenario is the issue of maintenance, where my usage is significantly less (two regular users) than the neighbour (six regular users). My understanding is that the onus is on myself to maintain the road as it is not detailed in the schedule.
     
  4. Rod

    Rod Well-Known Member

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    Sorry I can't help with the 'who pays maintenance' issue, not sure who is responsible. Needs someone with more property law knowledge to answer.

    re: Condition C. Starting point is the owner has full rights to use of his land. Easement comes in to also allow you certain rights. It doesn't take away the owner's rights except to ensure your rights for use are not infringed. You can try reading it your way as much as you like, don't think you'll be successful if you take it to court.
     
  5. tmbrjr

    tmbrjr Member

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    Thanks again Rod, I agree with your explanation. The reason I posted on this forum was to get a bit more of a consensus before taking the issue up with a solicitor as I had concerns my argument would be shut down relatively quickly and costly. If I were the land owner I would not expect to have limitations imposed upon my land use but needed to understand the language used in the schedule.

    Cheers,
     

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