QLD Owner of Property with Easement Wants to Build Gate?

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Rod

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Then you tell the owners the gate opening has to the the full width of the easement so that vehicles can access your properties using the easement.

Issue for you is what do you do if they refuse to allow a full sized gate.

If you want to enforce your rights do you take matters into your hands and pull down any obstructions and let the owners sue you if they want, or do you sue the owners and get a court order to take down the obstruction?

What you can do fairly simply is have a lawyer prepare and send a letter to the owner saying you object and do not agree to their proposal.
 
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Tripe

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22 May 2017
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You can use reasonable force to remove any obstruction, ie a gate, if it prevents you, visitors, tradesman, customers etc, enjoying your easement.

Also, your easement wording specifically mentions that trucks must be allowed to pass, so at the very minimum, the access must comfortably accommodate the passing of a truck.

And finally, the wording of the easement, does not mention anything about gates, and it's fantasy to suggest, that the servient title holder has full legal right to install a gate.
 
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Rod

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wording of the easement, does not mention anything about gates

I agree the wording we have been shown is silent on the issue of gates. This means an answer needs to be found in case law and it seems clear gates are not necessarily a 'clear and substantial interference'.

Each set of facts needs to be evaluated on its own merits to work out if a gate in these circumstances is allowable. Some circumstances allow gates, others don't. This is not a black and white area of law and the dominant rights holder may well need to go to court to determine whether gates represent an interference.

Here there is no landlocking of the properties and we are merely talking about a shortcut to another area. I don't see a strong case for saying no gates though I do think the issue of leaves being a safety hazard is a made up cover in an attempt to either stop a nuisance to their property, or remove easement rights in the longer term.
 

slou

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10 November 2018
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Thank you so much for your thoughts and suggestions. It is very much appreciated. I suppose our main concern is that the property owner may have an ulterior motive and that we need to protect our easement rights, however an unlocked pedestrian gate may resolve the conflict between us and the new owner and avoid it escalating, so we are a bit torn.

I suppose my main question now is, if we allow an unlocked pedestrian gate that is smaller than the size of the easement, which will be workable for most of us, most of the time, will the servient easement holder later be able to argue for a reduction in the size of the easement, and therefore be allowed to develop the block further and closer to our properties? Also, at some point in the future, we may need to use the access to the full size of the easement (to bring in equipment or vehicles to work on the woodland area at the bottom of our respective blocks), however this hasn't been required in recent years and currently the main use of this easement is for pedestrian access.
 

Rod

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will the servient easement holder later be able to argue for a reduction in the size of the easement

It is possible.
 

Tripe

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Thank you so much for your thoughts and suggestions. It is very much appreciated. I suppose our main concern is that the property owner may have an ulterior motive and that we need to protect our easement rights, however an unlocked pedestrian gate may resolve the conflict between us and the new owner and avoid it escalating, so we are a bit torn.

I suppose my main question now is, if we allow an unlocked pedestrian gate that is smaller than the size of the easement, which will be workable for most of us, most of the time, will the servient easement holder later be able to argue for a reduction in the size of the easement, and therefore be allowed to develop the block further and closer to our properties? Also, at some point in the future, we may need to use the access to the full size of the easement (to bring in equipment or vehicles to work on the woodland area at the bottom of our respective blocks), however this hasn't been required in recent years and currently the main use of this easement is for pedestrian access.

The issues you mention above, is why, a gate on an easements are normally not allowed in residential areas, as it an excessive burden to the dominant title holders, now and into the future.

Why do the servient title holders want the gate, locks and insurance? most likely to piss you off and to stop you using the land, which will have no weight in court.

Just remember, that you or the previous owner, most likely paid a fee to the servient title holder (or previous holder) to use that piece of land, and now after the fee has been spent, they want to decrease your enjoyment of the easement.

Write a letter, stating, that the proposal is an burden to your enjoyment of the easement (now and into the future etc) and reasonable force will be used to remove any gates and locks. Also get other users to right the same letter and send it to them.

if you end up cutting locks etc, and they call the police, the police will tell you/them its a civil matter and they wont do a thing as, you have a legal right to access that part of the land.


And finally, if you do let them put the gates up etc, good luck getting them removed in the future.
 
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Rob Legat - SBPL

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I'll give you one good reason why they might want to put gates up - to stop unauthorised people accessing the easement. It's not a public thoroughfare. Bit harsh? Doesn't matter; if that's their choice - that's their choice. Unless the terms of the easement clearly state that they cannot do so (and don't forget, we've only been given a snippet of it), they are legally allowed to secure so long as they don't unreasonably interfere with the rights granted to the dominant tenement. And a gate, subject to configuration, size and placement concerns, is probably not unreasonable so long as the means of access are given.

Unlawful interference with the servient tenement's property - such as cutting lock or dragging down gates, especially repeatedly - could potentially lead to court action which may lead to modification or even partial/full extinguishment of the easement. Admittedly, full extinguishment is unlikely (especially given multiple parties who use the easement), but it is within the power of the courts. If the courts were to consider such actions as an abandonment of the terms of the easement by the dominant tenement owner, or in the public interest to stop property destruction, they might be open to removing some of the easement rights.

What Tripe is advocating will not help your position - it will make them worse. You would be much better served realising you have a restricted set of rights to use someone else's property and outside that it's their property to deal with, getting a proper, legal opinion interpreting the full rights given under the easement, and negotiating with the owner to make sure that what they intend to construct does not impede what you have been granted.
 
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Tripe

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22 May 2017
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There is nothing unlawful in any of my opinions.

Removing an obstruction is a legal right to any easement holder, including cutting locks and gates on a previous ungated easement.

Abandonment of an easement has nothing to do with removing a gate, and Rob is getting very desperate.

To prove abandonment, there would need to be multi-decades of non-use of the easement or the dominant titleholder has allowed the easement to fall into a state of disrepair, that does not allow the easement to be used in the manner of the wording of the easement

Be very clear !!!! The wording of the easement does not mention the easement being gated.

The dominant title holder, cannot decide they want a gate and will have no choice but to seek civil action to enforce this gate if you and others challenge this.

So push back, and push back hard.
 

Lucy Lu Smith

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17 November 2018
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We are in a similar situation in WA. I thought gates across easements were mainly deemed reasonable when involving stock (to keep stock inside a paddock for example).
 

Rod

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That's the obvious use for allowing gates, though even then cattle grids are an option.

You need to evaluate all the relevant factors of each case to work out what is likely to happen if the matter goes to court. But it would take a brave lawyer to give an ironclad answer to these kinds of disputes.