QLD Owner of Property with Easement Wants to Build Gate?

Discussion in 'Property Law Forum' started by slou, 12 November 2018.

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  1. Tripe

    Tripe Well-Known Member

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    Finally had a few hours over the weekend to read another of Rob’s supplied judgments.


    Walker vs Espie 2003

    The dominant title holder was on a corner block that fronted 2 public roads, but they used a small public lane + an easment to access their property at the rear.

    (Regardless of the court decision, they enjoy gate free access to their property)

    Both the Servient and dominant title holders had a conversation and agreed to the use of a remote control electric gate, on one of the two common easment boundaries.

    The relationship became unworkable when they could not decide who would pay the cost of the electric gate, who would provide and pay for electricity and if the electric gate would be absolutely mechanically reliable and if they are useable under a power outage etc.


    In the court case the judge makes the following quote

    “If those problems (reliability) can’t be resolved, they might mean that the presence of the gates is a substantial interferences of the right of way”

    The judge also makes a comment on the possibility of a second gate being placed in the easment,
    “ the situation would need need to be reconsidered”
     
  2. Rod

    Rod Lawyer
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    I like your persistence.

    Still cannot give a categorical answer to the question. It can only be decided by a court after consideration of the facts.

    I accept some cases indicate gates are not allowed, but by the same token, other cases allow gates.

    Each situation needs to be evaluated on its own merits - and then by a judge. Taking unilateral action that results in destroying property belonging to someone else may result in court action against you. You may win, you may not.

    The person deciding to take action needs to be aware of the risks. That also includes the person putting in gates where none existed before.
     
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  3. Tripe

    Tripe Well-Known Member

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    Persistence, LOL, true

    + time poor at the moment,

    The next case, which I have half read, has referenced a court ruling, that ruled having gates on an easment is a unreasonable burden.

    But I need to fully read it first,
     
  4. Tripe

    Tripe Well-Known Member

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    I have finished reading Trewin vs Felton 2003.

    Trewins owned a public road fronting property and Felton’s owner a battle axe property that sat behind the Trewins.

    (Regardless of the court ruling, the dominant title holders enjoy gate free access to their property )

    The battle axe handle was 38m long and mostly 4m wide.

    Trewins wanted to construct a double carport garage at the rear of the property and they wanted to use the battle axe handle for access, they had a dominant easment title over the axe handle. (38m in length)

    The servient title holder fenced the complete easment boundary which would stop the dominant title holders accessing their carport. The dominant title holders then pulled down sections of the fence to access their carport. The servient title holder went to court to stop them pulling the fence down, but was found to of created an actionable nuisance and was not allowed obstruct the easment boundary, where the dominate title holders would access the carport, an ungated opening of 13m was left, This opening ran from the 20m to 33m chainage along the easment boundary.

    In the last 5m of the easment, the dominant title holder installed a gate across the easment

    The judge ruled that the dominant title holders had gate free access to the car port, but the gate on the easment was only an obstruction if they wanted to reverse a trailer into their second car port, as this was would be a rare occasion, the gate would have to be unlocked at all times and it would not be a burden to the dominant title holder to open the gate on the rare occasion they sort to reverse a trailer into the 2nd carport.

    The judge also noted that if the last 5m of fenced easment became an access point, the presence of the gate would need to be reviewed.

    In this court case the domiant title holders ended up with gate free access from the public road to their rear carport, the gated 5m section of easment would of been lucky to be used on a monthly or yearly basis, and the judges suggested rhe dominate title holders over exaggerated the difficulty in reversing a trailer into the 2nd carport.
     
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  5. Rob Legat - SBPL

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    I appreciate you've gone to a lot of work with the case notes, but I don't see the point. You asked for cases - you got cases.

    The factual situations are of course different... and they don't match exactly. Welcome to the world of legal precedent, where very little is every 1:1 (and if it were, we wouldn't need so many lawyers, and we might all get along better).

    There's no black and white here; I didn't claim there was. Nothing might happen to somebody if they tear down a gate that gets placed on an easement. They might get taken to court, and win, but at the expense of a lot of time and money. But what you won't find is me or, I dare say, any prudent lawyer suggesting that someone is fine to just pull down any locked gate and threaten legal action.
     
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  6. Tripe

    Tripe Well-Known Member

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    In these forums I share My experience as a multi decade chartered professional + personal experience where Applicable.

    As I’m not paid for this advice, and I am anonymous, I have no liability if my advice is wrong or derive a benefit if it is right.

    I however do acknowledge that a fee charging lawyer does not have this luxury.
     
  7. Rob Legat - SBPL

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    Worse than that, we are liable whether we charge a fee or not.
     
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