Thanks for the help in advance. For background I am an ex-solicitor who worked in property but never dealt with this before so looking for some advice on how to enforce an easement in practice.
Background:
Neighbour and I live on two battleaxe blocks with a shared driveway that splits just before the houses. The driveway is split down the middle between the two properties (she owns the right side / I own the left side). There are Access Easements burdening and benefited each respective property for use of the easements.
My neighbour doesn't like visitors to my property driving on what she calls "her side of the easement" particularly at the top where the driveway splits in two (visitors typically turn around on that spot as the driveway is very steep and vision limited). She has since erected a seriously solid starpicket and tape fence next to the driveway to prevent cars from using that part of the easement on her property - without consulting us beforehand I might add. She also has a history of abusing visitors to my property (including couriers) who turn around on this section of land.
Easement Terms:
The easement's stated purpose is an 'Access Easement' although it includes the following terms for clarity:
The Grantor doth hereby grant to the Grantee... and its tenants, servants, workmen, agents, visitors and licensees ... and all other persons from time to time having the same or like right the full and free right and liberty of way and passage at all times hereafter by day or night at their will and pleasure and for all purposes to go, return, pass and repass with or without ... motor vehicles of any description laden or unladen into along or over such parts of the land as are described in Item 7 (the Easement on her property) hereto for all purposes whatsoever without let or hindrance of any kind from the Grantor".
Whilst the easement terms don't expressly specifically prohibit any form of construction or otherwise on the easement the fence clearly prevents us from driving a motor vehicle onto that area of the easement.
Action Taken:
I spoke to her last night to explain my understanding of the terms of the easement and to ask if she would remove the fence. I also noted that given the steep nature of our driveway that the fence would present a problem for emergency vehicles leaving our house (my wife has an ABI, is a current NDIS Participant and has had a recent emergency hospitalisation). She wanted to see a legal reason why she couldn't do what she had done and so I sent her a very gently worded email explaining the law as I understood it and provided copies of the easement document and noted the above terms; I requested that the fence be removed and offered to assist if she wanted help. I got a reply today that disagreed with my assessment but no logic supplied - essentially said she is going to look for the law that says she can do what she has done...
Question:
I have tried to be very conciliatory, understanding and resolve this without resorting to legal recourse. I understand from meeting with her in person that her decision making around this issue isn't necessarily based in logic but emotion. She feels that the easement is her land "I pay the rates for it" and thus she can do what she wants with it. I have very little confidence at this stage that I could convince her otherwise and thus would like to understand what legal (or other) options I can pursue.
I understand that 'self help' is technically an option (i.e. I could physically dismantle the fence and place the materials to the side) but I believe that may only further raise tensions. Really appreciate any insights or advice you can provide!
Thanks
BrisbaneQldNeighbour
Background:
Neighbour and I live on two battleaxe blocks with a shared driveway that splits just before the houses. The driveway is split down the middle between the two properties (she owns the right side / I own the left side). There are Access Easements burdening and benefited each respective property for use of the easements.
My neighbour doesn't like visitors to my property driving on what she calls "her side of the easement" particularly at the top where the driveway splits in two (visitors typically turn around on that spot as the driveway is very steep and vision limited). She has since erected a seriously solid starpicket and tape fence next to the driveway to prevent cars from using that part of the easement on her property - without consulting us beforehand I might add. She also has a history of abusing visitors to my property (including couriers) who turn around on this section of land.
Easement Terms:
The easement's stated purpose is an 'Access Easement' although it includes the following terms for clarity:
The Grantor doth hereby grant to the Grantee... and its tenants, servants, workmen, agents, visitors and licensees ... and all other persons from time to time having the same or like right the full and free right and liberty of way and passage at all times hereafter by day or night at their will and pleasure and for all purposes to go, return, pass and repass with or without ... motor vehicles of any description laden or unladen into along or over such parts of the land as are described in Item 7 (the Easement on her property) hereto for all purposes whatsoever without let or hindrance of any kind from the Grantor".
Whilst the easement terms don't expressly specifically prohibit any form of construction or otherwise on the easement the fence clearly prevents us from driving a motor vehicle onto that area of the easement.
Action Taken:
I spoke to her last night to explain my understanding of the terms of the easement and to ask if she would remove the fence. I also noted that given the steep nature of our driveway that the fence would present a problem for emergency vehicles leaving our house (my wife has an ABI, is a current NDIS Participant and has had a recent emergency hospitalisation). She wanted to see a legal reason why she couldn't do what she had done and so I sent her a very gently worded email explaining the law as I understood it and provided copies of the easement document and noted the above terms; I requested that the fence be removed and offered to assist if she wanted help. I got a reply today that disagreed with my assessment but no logic supplied - essentially said she is going to look for the law that says she can do what she has done...
Question:
I have tried to be very conciliatory, understanding and resolve this without resorting to legal recourse. I understand from meeting with her in person that her decision making around this issue isn't necessarily based in logic but emotion. She feels that the easement is her land "I pay the rates for it" and thus she can do what she wants with it. I have very little confidence at this stage that I could convince her otherwise and thus would like to understand what legal (or other) options I can pursue.
I understand that 'self help' is technically an option (i.e. I could physically dismantle the fence and place the materials to the side) but I believe that may only further raise tensions. Really appreciate any insights or advice you can provide!
Thanks
BrisbaneQldNeighbour
