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QLD Easement - Parking in Front of Property?

Discussion in 'Property Law Forum' started by HLP, 13 May 2018.

  1. HLP

    HLP Member

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    Hi, in advance i will inform this thread is quite long but I would very much appreciate some legal help and assistance for this issue.

    I live in a townhouse which is one of three buildings in the estate we live at the end of an L shaped easement, where there is one house on each point of contact for the L.

    As in one in front with the easement to their left (consider building Z), one in the bottom right corner with the easement to their front (consider building Y), and us in the bottom left corner with the easement to our front (consider building X)(note this is the end of the easement, where it meets a 2 meter wall, and is directly in front of our house).

    Both owners Z and Y are demanding we move one or both of our cars out of the easement and elsewhere, i.e. on the street.

    We have 4 people living in the house, 3 of which own a vehicle. One is parked in the garage and two outside our house (we cant park two in the garage as the rest of the space is used for storage and is very full.

    Note, each house has a garage, building Y (to our left) is complaining that we aren't allowed to park our two cars in front of our house (note that we own the property and do not rent). They state that were preventing them from being able to maneuver out of the garage so the can drive forwards out of the easement. (note, i have never witnessed this happen in my entire 6 year of living here and believe the reason to simply be that they dont want us parking there)

    Now we've lived here for 6 years and never had an issue until recently, in fact for the first three years we had two considerably larger cars parked outside our property as we had just moved and our garage was full. And never received complaint or issue for 3 whole years until we sold one of those cars, and eventually the other (we've only had the two new cars parked outside for as of this date, maybe 1-2 months)

    I believe their excuse is full of s**t, as i have video evidence that shows the owner of building Y driving straight out of their garage down the easement as they have always done for the time we've lived in the property.

    For context, the owner in front (building Z) has one vehicle which they park in their garage, they are in no way effected by our parking but have raised issue in support of the owner of Building Y (I believe this to be because neither of them like us)

    Now back to building Y (to our left). The owner complains they can't maneuver their car to drive forwards out, to which I suggested they reverse out.

    They stated they don't want to and shouldn't have to. Our cars are parked at least 2 and a half to 3 meters away from the beginning of their garage. The two vehicles that this person owns are both small cars (3-4 meters length max by 1.5m width (reference to their mainly used car which is a Nissan Cube) and I highly doubt they need to maneuver their cars as the easement is over 6 meters wide, the space in front of their garage is maybe (conservative figure) 6m wide by 8m long this provides an area of 48m squared, ample space to perform any maneuver for such a small vehicle.

    Given their reason (that they can't maneuver their cars, regardless of the fact they don't need to) do I have to move my vehicles off the easement for that?

    Note. prior research (from documents for our easement, from the Queensland Land Registry, Land Title Act 1994 and Land Act 1994) for this technically we are the grantor as it is in relation to the easement attached to our property, Owners Y and Z would be the grantee, although neither need to use the easement to get out of the property, nor do either actually use the easement.

    "2.2 Restrictions on grantor's use

    The grantor must not -

    a) Park or leave standing on the servient tenement any vehicles in a manner that would prevent other vehicles from passing or turning around by using the remaining area of the servient tenement and the adjoining easement..."

    This is one section they say we are in breach of, which is ridiculous because whilst we park, we do not park in a manner that would prevent other vehicles from 1. passing, as it is the end of the easement and there is nowhere to pass to, and 2. turning around, as previously stated, there is roughly 45+ square meters for them to maneuver in and therefore it is unreasonable to suggest that they required the easement in front of our property to effectively maneuver.

    The second section they say we are in breach of is:

    "6 Nuisance
    neither the grantor or the grantee will cause any nuisance to the owners and occupiers of any adjoining or nearby properties"

    Which they have not provided any reason as to why and how we are causing nuisance

    Now the worst part is these people are hypocrites, and have allowed their friends, workers and such to park in front of their properties completely blocking the easement on many occasion. Now I have photograph evidence of at least 5 events where this occurred. One of which lasted for at least 2 hours.

    We've never complained about this because it has never effected us, if we needed to move our cars then we would have asked them to move. Now these events have been occurring since we moved in and cant be blamed on us parking the two cars, time stamps of the photographs can prove such.

    Again with these facts, do I have the right to park in front of my property on my easement as I am not blocking access to anywhere, there is ample space for the owner of building Y to maneuver, and I am not causing any reasonable (if any at all) nuisance?

    Apologies for the long read if anyone does read, but I would really appreciate some help.

    Kind Regards
     
  2. Tripe

    Tripe Well-Known Member

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    Who owns the land that you are parking the disupted cars on? Are you the domiant or servient title holder?


    What is the exact wording on the easment?
     
  3. HLP

    HLP Member

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    We are the servient tenement (burdened land).

    Also noting we are at the end of the easement and the land in front of the garage (easement) on which our cars are parked is approximately 62.5 square meters (reference to builders schematics), as is the exact same for the land in front of the owner of building Y's garage (building to the left), however there are walls which hold small gardens that would mean the area is closer to 50sqm.

    Thanks
     
  4. Rob Legat - SBPL

    LawTap Verified Lawyer

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    This will come down to two things:

    1. A reading of the whole easement document. It's easy to miss some wording that may end up being important.
    2. A practical exercise to see whether you're impacting on their rights under the easement. This may mean a tape measure needs to come out.

    Unfortunately, there's no way to answer your question without someone going through this exercise. Even then, it may end up in an argument where neither side accepts the other's.

    As for nuisance it needs to be both substantial and unreasonable to qualify. Something permanent, like a wall, or a locked gate, would constitute a nuisance - as may a permanently parked car.
     
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  5. Tripe

    Tripe Well-Known Member

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    Without seeing the wording of your easement, I would think, as long as the other parties can still travel through the easement without complete obstruction, I can’t see how they can complain.

    An easment does not give a dominant title holder exclusive possession of the land, only a right to travel through.
     
  6. Rob Legat - SBPL

    LawTap Verified Lawyer

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    An easement gives the dominant tenement holder the right to do whatever the easement says they can do - not just a right to travel through (unless that's all it says).
     
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  7. HLP

    HLP Member

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    Ok thanks Tripe, I would have thought the same since we are of no obstruction to either neighbour.

    Rob I have all the documents related to the property and the easement in question, it doesn’t say that we’re not allowed to park in the easement, but that we’re not allowed to park in any way that would obstruct our neighbours, which my interpretation of the easement is that means we are allowed to park as long as we do not cause obstruction.

    I’ve read through the entire easement documents related to our property and the building schematics, wording wise I am certain that the easement does not say you cannot park on the easement. Also, as previously mentioned, I have video evidence proving that the neighbour does not use any of our easement to manuevre their car our of their garage. Would this negate the need to perform a practical exercise? As it completely defeats their argument ?

    As for wording, it says we must allow them the ability to pass or travel through the easement, which is unnecessary since there is nowhere to pass or travel to. We’ve acknowledged that we don’t own the land and simply park there because the street we live on is very narrow and the possibility of getting our cars scratched or damaged is very high.

    Now as we do not own the land, technically the neighbours would be allowed to park where our cars are currently and this would be correct if we didn’t have the vehicle in the garage. Because if they were to park there, they would be blocking our ability to ingress and egress through the easement
    It is to my knowledge that neither neighbour wants to park there, they just don’t want us to.

    Thanks
     
  8. Rob Legat - SBPL

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    By practical exercise, I'm referring to things like the video you've done. What else is needed would come down to a consideration of all the factors.

    You do own the land, and you have all your usual rights to use it so long as you don't interfere with the easement rights granted. Effectively, the easement sits on top of your property owner rights - it doesn't remove them.

    Also, unless the easement specifically says they can park on the easement then they can't Park on the easement. A right of passage is not the same as a right to storage or parking.

    As much as you think you understand the easement document, you might benefit from getting some legally qualified advice. Your last couple of points might indicate you've missed a few other issues.
     
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  9. Tripe

    Tripe Well-Known Member

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    I’m confused?

    You state that you are the servient title holder?

    And then you state that you don’t own the land?



    This makes a big difference, if you don’t own the land where you are parking!!!!!!
     
  10. HLP

    HLP Member

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    Ok, I must be wrong then. My assumption was that no one owned the land for their separate easement. We’ve been seeking legal advice but the lawyer we approached has so far been useless and has accomplished nothing even though we went to them two months ago.

    We would leave them, but they have “apparently” already been working on it so leaving them would mean we have to pay them for what useless work they have already done. When I spoke to another solicitor he suggested that it was his understanding that the easement was shared property between each property owner, which lead me to the assumption that we didn’t own the land.

    I’ve suggested we seek alternate legal advice, but the rest of the family thinks we should wait for the current lawyer.
     
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