VIC Dominant tenement rights over carriageway

Discussion in 'Property Law Forum' started by JoanneWatt, 19 March 2019.

  1. JoanneWatt

    JoanneWatt Member

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    We have a old lane at the back of our house which is on our title and which provides access to a neighbour's rear pedestrian gate. He does not have a driveway, garage or space for a car on his property. He uses the gate to put out and collect his rubbish bins, and to carry things out to his car. He also has foot access to his property front entrance from the street and has a parking permit for the street. He is the dominant tenement over an easement on our lane which we assume is a right of carriageway.
    My question is, does he have the right to park his car in our lane 24x7 for the purpose of loading/unloading his car or washing his car ? Does he have the right to scream at us (!) if we temporarily park a car in the lane leaving plenty of room for him to walk through, push bins etc ?? Today he yelled at our cleaner who was parked in the lane, well out of his way. As he cannot use the carriageway to drive onto his property by car, doesn't this diminish his rights somewhat ?
     
  2. Rob Legat - SBPL

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    I don't practice in Victoria, so this is a general comment on the nature of easements: It depends on what the terms of the grant of easement say.

    He doesn't have the right to 'scream' at you, but that's in the general sense that that isn't a 'right' anyone has.

    If he has the right to use then you can't unreasonably obstruct his use. However, he may not the right to park his car if the grant of easement is only for 'passing over'.
     
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  3. Tim W

    Tim W Lawyer
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    Might be a good idea to find out.
    What if it's only a right of footway, and does not carry an entitlement to use a vehicle?

    Might also be a good idea to get a proper survey and title search done.
    Wouldn't be the first time that somebody has mistaken a public laneway for part of their lot,
    or believed without question what a shark real estate agent told them.

    Now, without allowing for any of the unstated specifics of this particular easement,
    consider, as a general proposition, that easements are functional in the nature, rather that proprietorial.
    That is, they exist to enable something to happen (such as passing over the burdened land for access),
    but do not create the owner-like or tenant-like rights of occupancy and exclusive use.

    So, for example, if it's an easement for vehicle access, then you don't get to do things like
    gate it off, or put up bollards (or, as caselaw tells us, plant trees) that block vehicles and only allow walking.
    Just as he doesn't get to park there, because it's not his land, nor (as far as we know)
    in the nature of the easement.

    On that basis, although it's a narrow and unneighourly interpretation,
    while bona fide loading that is minor, infrequent, and irregular,
    might be thought of "reasonable access", of a kind it would be unconscionable to obstruct,
    I'd argue that using it to wash his car every Sunday, and certainly to routinely park it,
    might be a trespass.
     
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  4. JoanneWatt

    JoanneWatt Member

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    Many thanks both of you.

    The title clearly shows that we own the land. The difficulty is in finding the legal terms of the easement, further complicated by the fact that the lane no longer runs behind his property due to 1980s subdivisions and body corp arrangements. So while it may have been a ‘horse and cart’ entrance to his property long ago, it no longer is. The lane only provides pedestrian access.

    Re bona fide loading, car washing etc, we are happy for him to use the lane this way, we do try to be reasonable and neighbourly. The issue is that he stops US from using it unless we ask him first every single time. Not reasonable in my view, especially as we have to use the lane to drive into our garage.
     
  5. Rob Legat - SBPL

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    This further information raises further issues:

    1. It may be worth investigating whether the easement has been extinguished, or is simply not in the place he claims it to be. While the easement may not be formally extinguished, if property boundaries have been adjusted this can have the effect of subsuming the easement (or at least making it someone else's problem). Finding this out would involve a careful examination of the title(s), the original plan of easement and the current lot boundaries.

    2. If the easement is still valid, and it is for 'horse and cart' (for example) then there is the question of whether he can take action against narrowing of the lane by way of fences and the like which unreasonably restricts his ability to use it. The contrast for this is if he hasn't taken action in time the other parties may have a claim for adverse possession of those parts (12 years in Queensland, unsure if different in Victoria).

    3. Easements do not extinguish the owner's rights to use their land - it merely modifies them. So long as you are not impeding his lawful use of the easement according to its terms of grant then you are entitled to use your land - including to drive up and down it. You do not need his permission unless the terms of grant specifically provide otherwise.
     
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  6. Tripe

    Tripe Well-Known Member

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    A right of carriage, is named from the 1800's so as to allow Horse and Carriage the right to pass over a piece of land. (which was the common means of transport at that time)

    Subject to the wording of the easement.

    In general, the neighbour would not have the right to park and wash his car, on the easement,

    He could have the right to unload and load a vehicle.

    He can't be blocked from using his easement, if a car is parked in the easement and he can get safely past it with his car, then he cant complain or abuse you.
     
  7. JoanneWatt

    JoanneWatt Member

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    Thanks again Rob et al.

    Looks like I will have get a land survey done to establish the current easement status and its terms. We have accessed a lot of old documents from Land Victoria but it’s too confusing to interpret with confidence.

    We are happy to provide foot access to his back gate at all times and for him to load/unload his car as needed. However leaving the lane fully clear 24x7 ‘just in case’ he wants to drive right to his gate is a stretch ! Note we never park in the lane except to load/unload or for cleaner access etc. He deliberately obstructed our cleaner with his car for 40 minutes yesterday and I had to call the police.
     
    #7 JoanneWatt, 21 March 2019
    Last edited: 21 March 2019
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