Rights as Dominant easement holder

[SmartMoose]

I have got myself in a pickle over a <1m strip of land along the fence of our property. The land is owned by the neighbour and we have a free and unrestricted right of way over the land as it is ‘on our side of the fence’. The neighbour had no services running through the land.

We made an innocent mistake and didn’t realise we needed to ask their permission before paving over the land so we could use it as a path. The neighbour has now decided to reroute their stormwater drain along their land, and when we asked if they could contribute to the cost of relaying the pavers they called a lawyer on us for illegally building on their land (with pavers!). They now want to remove a portion of the shared back fence during the digging and have also told us we need to remove 90cm of the front rendered fence during construction.

The Excavation should only take 1-4 weeks but they won’t tell us when it is going to start and their builder won’t talk to us as we don’t have the building contract with them.

I get that it is their land, and I have resigned myself to the fact that we made a mistake in doing the paving and fence without asking (because we didn’t realise we needed to ask), and we have to deal with not being able to use the path for a short period of time and also pay to fix the damage bill later, but can’t help but feel we are being bullied, particularly with the front fence which they should be able to go under the foundation (like our Stormwater pipe does) But their builder won’t even talk to us so we can’t see if this is possible.

I was trying to avoid getting a lawyer involved given we need to pay to remediate the land as well, but should I we get a contract written up to state that they don’t step a foot over the allocated 90cm, and any damage to be repaired immediately? Can we offer to put the hole in the foundation for the pipe in lieu of taking out a chunk of fence?

Their demolition company also damaged the fence between our properties during demolition, which adds salt to the wound as we paid for the entire fence and didn’t charge them half for the fence 18 months ago as we didn’t want to put them out Of pocket. My husband wants the fence fixed before they excavate given he paid for it but I feel they won’t care about that either.

 

[Tim W]

First things first - is it actually an easement (is it, for example, on the title...), or
is it just that historically, the fence was further inside the boundary than it needed to be?
If the latter, then you may not have an easement at all - you might only have a licence.

Second - You're probably not being bullied.
It does seem that you are dealt with firmly, but
there's nothing unlawful in mere firm language.

Third - Yes, you need a lawyer.
Sadly, where there is one lawyer, there almost always needs to be another.
While this situation is not at all uncommon, it is a fairly complex area of law.
You've already said that you basically have no idea what you're doing.
That's not going to change.

Fourth - Although we don't have enough facts to say for sure,
you may have an action against the demo company for the damage to your fence.
In short and simple, they don't get to damage your fence without having to make-good any damage they do.

Fifth - their builder (and any other trades, like a plumber)
does not have any duty to talk to you.
For one thing, they are, as a matter of law, entitled to rely on the assurances of their customer
that they are OK to go ahead and do the work they've been engaged for.
For another, they are, rightly, probably not interested in getting drawn into your problem with their customer.

 

[SmartMoose]

Thanks for the insight Tim. Yes, it’s definitely an easement as it’s listed on both certificates of title. In any case, I’ve now engaged a lawyer to help with this matter as their list of demands just keeps getting bigger and I don’t like being wrongly accused of delaying construction when I have cleared the land ready to go.