QLD Residential Easement Question

Discussion in 'Property Law Forum' started by SarahWinifred, 5 December 2018.

  1. SarahWinifred

    SarahWinifred Member

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    HI there,

    We currently access our property via an easement - I understand we are the dominant holders of the easement. Our neighbour whom owns the land on which the easement is held wants to split the road which we use to access our property into two (it's his property) so we can use one road and he can use the other. He wants to do this and wants us to maintain the road that we use to access our property. I am not particularly keen on this idea, as the easement is not huge and it doesn't make sense to split in in two and I get the feeling he is up to something. In addition, it doesn't feel right for us to have to maintain property that we do not own. Can anyone advise why he may be doing this and who should be maintaining the easement? It's a right to access for us and is the only way to access our property. He initially proposed he build a road on state land so we can access our property which would be completely against the law obviously and we are just trying to work out exactly why he is proposing to split the road and access and what our rights are as the dominant easement holders? Many thanks in advance for anyone who can provide advice to us!

    Regards,

    Sarah
     
  2. Rob Legat - SBPL

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    The 'easy' part of the query first - who maintains the easement depends on what the grant of easement actually says. If it is silent, then the owner of the land is responsible to ensure the easement remains usable because there will be an implied (or possibly express) onus on the owner to not do anything to the land which renders it unusable for the easement purposes.

    As for him changing the easement so he can use it too - there's no need. It's already his land to use, so long as he doesn't use it in a way inconsistent with the rights granted to you under the easement. He can use the road the same as you can. Further, unless the grant of easement specifically states otherwise, you have the right to use all of the easement area for the granted purpose - not just the part which is covered road.

    The change he is looking at doing is unnecessary for his 'stated' purpose. If the easement is registered (which it should be), he only has two options to change it - get your consent in the required form, or get a court order.
     
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  3. Rod

    Rod Lawyer
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    Sounds like he wants to reduce the size of the easement, possibly with the view to building on or fencing the land he 'recovers'.

    @Rob Legat - SBPL - assuming the easement is silent on the issue of maintenance, if the easement becomes unusable due to normal use by the dominant landowner (eg huge ruts), and nothing the servient landowner did, who is responsible for making the easement usable?
     
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  4. Rob Legat - SBPL

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    @Rod - In the case where the dominant tenement's use of the land causes degradation, whether by normal use or otherwise, it is their responsibility to repair the damage cause. The servient tenement simply needs to make the easement area reasonably available for its granted use. In practical terms, most easements cater for this by specifying the dominant tenement can enter onto the easement and do works for the purpose of maintenance and upkeep.
     
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  5. Tripe

    Tripe Well-Known Member

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    Maintenance is also dependent on if the easment is exclusive or non exclusive.

    if the easment is exclusive to the dominant title holder, they are responsible for 100% of the cost.
     
  6. Tripe

    Tripe Well-Known Member

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    Plus, the land owner can not reduce the area of Your easment, if he makes two roads in the easment, you can use both roads.
     
  7. Rod

    Rod Lawyer
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    Thanks guys, and apologies to OP for a hijack.
     
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