QLD How to enforce an easement

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17 February 2020
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Thanks for the help in advance. For background I am an ex-solicitor who worked in property but never dealt with this before so looking for some advice on how to enforce an easement in practice.

Background:
Neighbour and I live on two battleaxe blocks with a shared driveway that splits just before the houses. The driveway is split down the middle between the two properties (she owns the right side / I own the left side). There are Access Easements burdening and benefited each respective property for use of the easements.

My neighbour doesn't like visitors to my property driving on what she calls "her side of the easement" particularly at the top where the driveway splits in two (visitors typically turn around on that spot as the driveway is very steep and vision limited). She has since erected a seriously solid starpicket and tape fence next to the driveway to prevent cars from using that part of the easement on her property - without consulting us beforehand I might add. She also has a history of abusing visitors to my property (including couriers) who turn around on this section of land.

Easement Terms:
The easement's stated purpose is an 'Access Easement' although it includes the following terms for clarity:

The Grantor doth hereby grant to the Grantee... and its tenants, servants, workmen, agents, visitors and licensees ... and all other persons from time to time having the same or like right the full and free right and liberty of way and passage at all times hereafter by day or night at their will and pleasure and for all purposes to go, return, pass and repass with or without ... motor vehicles of any description laden or unladen into along or over such parts of the land as are described in Item 7 (the Easement on her property) hereto for all purposes whatsoever without let or hindrance of any kind from the Grantor".

Whilst the easement terms don't expressly specifically prohibit any form of construction or otherwise on the easement the fence clearly prevents us from driving a motor vehicle onto that area of the easement.

Action Taken:
I spoke to her last night to explain my understanding of the terms of the easement and to ask if she would remove the fence. I also noted that given the steep nature of our driveway that the fence would present a problem for emergency vehicles leaving our house (my wife has an ABI, is a current NDIS Participant and has had a recent emergency hospitalisation). She wanted to see a legal reason why she couldn't do what she had done and so I sent her a very gently worded email explaining the law as I understood it and provided copies of the easement document and noted the above terms; I requested that the fence be removed and offered to assist if she wanted help. I got a reply today that disagreed with my assessment but no logic supplied - essentially said she is going to look for the law that says she can do what she has done...

Question:
I have tried to be very conciliatory, understanding and resolve this without resorting to legal recourse. I understand from meeting with her in person that her decision making around this issue isn't necessarily based in logic but emotion. She feels that the easement is her land "I pay the rates for it" and thus she can do what she wants with it. I have very little confidence at this stage that I could convince her otherwise and thus would like to understand what legal (or other) options I can pursue.

I understand that 'self help' is technically an option (i.e. I could physically dismantle the fence and place the materials to the side) but I believe that may only further raise tensions. Really appreciate any insights or advice you can provide!

Thanks
BrisbaneQldNeighbour
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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There are really three options here: reason, abatement, and court action.

I'd suggest 'reason' first. Forget a 'nice' letter (you've tried that). Send them a directly worded letter stating that they are in breach of the terms of the easement, state why and give them a reasonable time period to remove the fence.

Abatement, or the physical removal, is as you've stated a possibility to raise further tensions. This course of action can be legal, but tenuous. I don't suggest this unless in an emergency type situation (such as a medical emergency for your wife). At the least, if you intend to do so, I'd also alert your neighbour that this is a possibility and that it will only be used in either an emergency or if you are unable to amicably settle the matter.

You may be relegated to court action. Easements are enforceable contracts and you'd be looking for an injunction to restrict your neighbour from breaching your rights under the easement. As you'd be well aware, this can be a costly exercise.

Perhaps the best option is to send the letter and try to push them into getting some reasonable legal advice, who should tell them to stop breaching the terms of the easement.
 
17 February 2020
4
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Hi Rob,

Thanks very much for the frank and very practical advice!

I am hoping to arrange to meet with her again with a family member in attendance that may be able to look at all this from a more impartial angle and hopefully assist her to understand that what she has done is a breach of the easement. She lives alone though and I know family visit only infrequently but hopefully this might be a way forward. I'm getting close to my wits end though.

Otherwise I like the next step of a directly worded letter setting out the same but formally and requesting removal in a reasonable time (out of curiosity what is reasonable in the circumstances?). Would I also have the option to advise that if it is not removed within ... days/weeks that I will remove it for her? It really is causing an enormous amount of nuisance as it stands - preventing my wife's support worker from driving to the house to pick her up (she has to walk the long driveway to the road). If I chose to go the abatement route I suspect one pre-condition would be to advise the other party of my intentions in advance?

I appreciate your advice regarding abatement too - I wonder if the court would view it any differently though given that the fence as it is can be removed without damaging the materials - it is a starpicket fence with fluro taping? I guess I'm equally concerned that if I sought injunctive relief the court might be disappointed that, in light of the temporary-ish nature of the fence, that wasn't attempted first - especially considering the legal and court fees if she decided to oppose such an application to the court. Just a thought experiment.

Out of interest, if I did seek a court ordered injunction who has jurisdiction in this? I couldn't see anything on QCAT regarding this.. but then I thought they got the old land court in their ambit... it wouldn't be a district court matter would it?!

Thanks again!!
 

Rob Legat - SBPL

Lawyer
LawTap Verified
16 February 2017
2,454
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2,894
Gold Coast, Queensland
lawtap.com
What’s reasonable in the circumstances depends on the circumstances. If it’s more of a nuisance than anything, I would think 14 days is sufficient. If it’s severely impacting your use, then perhaps some time between immediately and 72 hours.

I would think some wording along the lines of her having the stated time frame to remove it and keep it removed, after which time you intend to remove it yourself (if you do intend to do so). However, if it unreasonably impedes access to your property in any situation you deem sufficiently urgent you should reserve the right to remove the obstruction without further correspondence or notice.

The court would possibly look at your abatement scenario more favourably than something like a permanent structure. The three cautions to abatement are: (1) don’t use more force than necessary, (2) don’t cause a nuisance/breach of the peace, and (3) don’t cause injury to the public. None of those would appear likely in the represented circumstances. Still, I’d suggest encouraging her to remove it unless your situation warrants immediate removal due to pressing need.

In terms of injunction (and for disclosure, I’m not a litigator so this isn’t from personal experience), you’d be looking at either District or Supreme Court – Magistrates doesn’t have the power to grant injunctions. This isn’t in the Land Court’s wheelhouse (that’s more valuations, resumptions, mining tenures and the like).
 
17 February 2020
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Hi Rob. If you're in Brisbane I'll buy you a beer. Really appreciate that info!

Having to go to the District or Supreme sounds insane.. but yeah it's a bit of an odd gap in jurisdiction (that was the same conclusion I'd reached). Really should be the sort of thing that QCAT handles at least where it involves neighbours but that's for the legislators to amend!

Whilst I'm not opposed to abatement in the circumstances (I can pull it down faster than it can go up) I'm concerned I'll just come home to something more substantial thus the third party route and hopefully resolution.

Will update you with the ultimate outcome - it's always nice to know the end of a story and often (especially when the advice is great) we don't get to hear.
 
17 February 2020
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Tried for the third party involvement. Not successful.

Tried with the firmly worded letter with notice that if it isn't removed in seven days it will be removed. Fence disappeared the next day.

Thank you again.