VIC Easements and upkeep liability

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SarahT

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2 July 2020
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Hello,

Am just wondering if two properties benefit from easements (pipes) through another property which receives no benefit, are the two properties that benefit solely responsible for maintainance and upkeep? And who organises the work?

Thanks!
 

Rob Legat - SBPL

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This should be covered in the document setting out the terms of the easement. You may need to search a copy from the land titles office.
 

Rod

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... and good luck.

Not all easements are properly created.
 
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SarahT

Member
2 July 2020
4
0
1
Hello,

Am just wondering if two properties benefit from easements (pipes) through another property which receives no benefit, are the two properties that benefit solely responsible for maintainance and upkeep? And who organises the work?

Thanks!
 

SarahT

Member
2 July 2020
4
0
1
Thanks Rob for your thoughts.

This easement has been in existence since about 1940 and there are no details in the title documents.

I’m just wondering though about general principles - given there are no other specific defining variables (such as info in title docs).

thanks again!
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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Gold Coast, Queensland
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That makes the situation somewhat debatable and, given the age, subject to common usage over time (think of it like a 'tradition'). However, at the outset the general thinking is that the person(s) benefiting from the easement are the ones who have to maintain the pipes - with the provision that reasonable access to do so is inferred. The person whose land the pipes pass generally only has an obligation not to obstruct the use and reasonable access. Outside that, it's the other persons' responsibility.
 

SarahT

Member
2 July 2020
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1
👍🙏. What I thought, but the servient easement owner (?? dunno if I’ve got it right) is insisting that he has the right to do the work!

While we are more than happy to make certain accomodations to this entity, we stop short of allowing total control. He keeps quoting a VCAT ruling that he insists means he has the right to do it. Now I’m not a lawyer but I always thought that common law can only come about from rulings in the higher courts and not a tribunal. Is that correct or should I be going back to study law 😕!!
 

Rod

Lawyer
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is insisting that he has the right to do the work!
What is the problem with this solution?

Your comment about common law is correct. What can happen is some VCAT rulings are used by other VCAT members. But the facts need to be very similar before they can readily be applied.