Australia: Was an easement that let one landowner park on a neighbours land valid? Which case won?

The Facts

Easement to park and garage vehicles created over waterside property

Two landowners owned neighbouring harbourside properties (Property A and Property B) in the eastern suburbs of Sydney. The properties were at the back of a larger block and were both accessed from the street by way of a long, narrow driveway. At the end of the driveway there was a wider area belonging to Property A on which two garages had been built side-by-side, a single garage and a double garage.

In 1990, an easement was granted in favour of Property B over an area approximately 3m x 16m in size, which comprised the single garage and the area immediately in front of it ("the easement area").

An easement is a legal right to use someone else's land for a specific limited purpose, most commonly in the form of a right of way or for services such as water or sewerage.

Terms of easement to park and garage vehicles

The terms of the easement purported to give the Property B owners the legal rights to:

  • Stand, park and garage vehicles from time to time and at all times in the single garage and the area immediately in front of it
  • Keep, maintain in good repair and replace the garage structure
  • Keep closed any doors or gates on the garage structure

Landowners construct garages and vehicle turntable

The owners of Property B, who had lived at the property since 1970, had been in the habit for many years of using the easement area to park two vehicles – one in the single garage and one immediately in front of that garage.

The owners of Property A had installed a vehicle turntable in front of the double garage, which meant that they could easily turn their vehicles around when leaving the property, rather than having to reverse down the narrow laneway.

New owners move in and dispute arises

In May 2015, Property A was sold and a new owner moved in. By that time, the vehicle turntable in front of the double garage had not been operational for some years.

The new owners found they had considerable difficulty reversing down the narrow laneway. Without the vehicle turntable, the only way they could turn their car around after parking it in the double garage was to reverse out and utilise the area immediately in front of the single garage to perform a three-point turn.

The new owners of Property A spoke to the Property B owners and asked that they not park in the area immediately in front of the single garage. The owners of Property B repeatedly ignored the request and a dispute between them arose.

Police were called to the property in November 2015 when the Property A owners parked their car in a way that blocked access to the easement area. Various other incidents took place between the warring neighbours and police were again called to mediate the dispute in August 2016.

Property B owners seek Supreme Court declaration that easement is valid

As a result of the escalating dispute and the various allegations being made, the Property B owners applied to the Supreme Court for a declaration that the easement gave them a valid right to park their cars on the easement area. The owners of Property B also sought an injunction to restrain the Property A owners from interfering with their rights under the easement.

The Property A owner filed a cross claim, seeking a declaration that the easement was not valid or enforceable.

case a - The case for the owner of Property A

case b - The case for the owners of Property B

  • The easement is on my property, yet, by its terms, it amounts to a right of joint occupation/ownership by my neighbours, which goes well beyond that which should be allowed in an easement as a matter of law.
  • That is, the easement goes too far and substantially deprives me and my family of ownership or legal possession of the easement area, and indeed other parts of my property.
  • For example, the easement gives our neighbours the right to build a permanent garage structure of unlimited height on the whole or any part of the easement strip. It also gives them the right to keep the doors of the garage closed and locked, preventing access by anyone other than them.
  • The extent of the interference with my rights of ownership of the easement area is such as to deny me reasonable use of the area of the easement.
  • The rights purportedly given by the easement leave me with very few rights over the easement area and are inconsistent with my ownership and possession of that area.
  • The court should find that the easement is not valid or enforceable by my neighbours.
  • By definition, all easements interfere with the owner's use of the area affected by the easement. Our neighbours have demonstrated nothing more than mere inconvenience.
  • The extent of interference by the easement area with our neighbour's rights of ownership does not warrant the conclusion that the easement is invalid.
  • The easement does not give us a right to erect buildings, it only provides a right for us to replace any existing buildings and maintain them in a state of good repair.
  • The easement does not grant us a right to lock any of the doors on structures on the site of the easement, it merely provides us with a right to keep such doors closed.
  • A turntable was installed in the area in front of the double garage some years ago. While it is not currently operational, our neighbour could choose to repair it. This would allow easy access to the double garage and the laneway.
  • The easement was validly granted 25 years before our current neighbour acquired her property and does not substantially deprive our neighbour of her rights of ownership.
  • Our neighbour retains reasonable use of her property in its entirety. The court should find that the easement is valid and we are able to enforce it.

So, which case won?

Cast your judgment below to find out

David Crossan
Property and planning
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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