VIC Neighbour Wants to Fence Off Easment - Help?

[Saint-Vitus]

Hi, we live on a 5 acre block which has an easement that runs along a back fence (we are burdened land). On our plan it says:

Easement Ref: E1
Purpose: Power Supply
Land Benefited/in Favour of - Powercor

Our neighbour (the benefited lot) says they own the easement and wants to put up a fence and gates at each end to use as a shortcut to the road - fencing us out of the area.

Is that correct under property law? I don't know about the electricity, but both our water mains are within the easement.

Who would know more about this? The council, Powercor or the original land surveyors?

The neighbour is a bit intimidating - they just told us what they were doing without any asking, etc. They also said that the width of the easement was an amount that was wider than what I have on our plans.


Any info would be most helpful. Cheers

 

[Tripe]

I am assuming you are the servient tenenement?

subject to the wording of the easment,

In general the neighbour or Dominant tenement can’t put up a fence, it’s your land.

An easment is a legal instrument that has a prescribed foot Print, it’s not just made up between two neighbours on the back of a McDonald’s bag.

 

[Rob Legat - SBPL]

I'm not familiar with Victorian property law. I'm applying Queensland principles, so your mileage may vary.

By Powercor, I assume you're referring to the electricity distribution network? If so, this sounds to me like an 'easement in gross', which I believe you have in Victoria. An easement in gross does not have a dominant tenement, and they are predominantly used for granting easement rights to utilities and public authorities. For example, an easement in gross to the local council to run stormwater drainage or, as is probably the case for you, to run power cabling underground or above ground.

If that is the case, your neighbour has no rights whatsoever - access or otherwise. A possibly simple way to check (applying Qld principles) is to get a title search for your neighbour's property. If they have rights to the use of the easement, it should be registered on their title as such. And, if it is, a follow up search of the easement terms will explain exactly what they can use it for.

Even if the power cabling does go to their property, that doesn't automatically mean they have any rights against your property at all.

 

[Rod]

I agree, title searches should be done first to check your legal position.