QLD Owner of Property with Easement Wants to Build Gate?

[slou]

Hello there and thanks in advance for any help given.

We and 8 other properties share an access easement through a neighbouring property, dating back approximately 100 years. It's on our property titles. Our homes are at the top of a wooded hillside and the burdened property is at the bottom of the hill. This easement gives us access from the bottom of our respective properties to the road below, passing through the neighbouring property (past the apartment building on the site and along their driveway).

Until recently this access has been through a gap in the fence of the burdened property. On the original title, this included access for vehicles, animals, guests, or any person who we invite, day and night. We use it for pedestrian access as a vehicle couldn't realistically make it up the steps and narrow pathway up to our properties. Most of us use it to access the road and beach below, usually carrying beach equipment, surfboards, etc, and often with children and pets.

The new owners have informed us that they will be installing a lockable gate and will provide keys to those who are entitled to them. They object to the leaves coming through the gap (the hill/ our backyards are protected woodland) and are concerned about safety, though the only people who use it are those who live on our hill and who all hold an easement on their property title. The new owner has also said we need to get our own insurance to cover us while we are passing through his property.

A side issue is that the current fence next to the opening where they would like to install a gate already encroaches on the easement, and the previous owners were informed of this when they built it about a year ago, but ignored our attempts to resolve it. We have not taken legal action but made this encroachment known to previous and current owners.

Our concern is that a gate - certainly a locked gate - would constitute a substantial interference to our easement rights. It would be difficult to handle keys etc when going back and forth to the beach, with beach equipment, pets, etc, and certainly when it gets dark (there is little lighting in that area). We are also suspicious that the new owner would like to reduce our access and later argue that the easement should be removed, or possibly use the encroachment as justification for extending the current apartment building over the area. It has been used without a gate for close to 100 years.

I would like to know:

1. if we would be able to prevent the new owner from installing a gate and also further encroaching on the easement.

2. Whether we are required to get insurance and maintain the easement/ driveway on his land. The wording of the easement specifically states that we (the dominant tenement holders) are not under an obligation to maintain the easement.

3. If a gateway is permitted since the size of the easement is far bigger than the size of a typical pedestrian gateway, could we require that the gateway installed opens to the full extent of the easement?

I've attached an extract from the easement below:

 

[slou]

Here is the relevant extract from the easement, with names removed:

… an Easement or Right-of-Way over the said Servient Tenement for them and each and every one of them with their and each and every one of their tenants customers agents servants and workmen and any and every other person or persons duly authorized by them or any or either of them at all times by night as well as by day to go return pass and repass with or without motor cars motor trucks horses carts wagons and other vehicles and animals laden and unladen in through along and over the said Easement or Right-of-Way also that the said XXXX or such owners and occupiers of the dominant Tenement aforesaid shall be under no obligation to repair or keep in repair the said Easement or Right-of-Way or to fence the same and also it is expressly agreed and declared that the Easement s hereby granted are to be enjoyed together or concurrently with any similar or other Easement that may have hereinbefore been or hereafter be granted to any person or persons and nothing herein contained shall be construed to prevent the said XXXX and XXX from granting similar or other Easements to any other person or persons.

 

[Rod]

Easement rules vary from state to state. What state are you in?

 

[slou]

Hi Rod, thanks for your reply. We are in Queensland

 

[Tripe]

Installing Gates are normally not allowable in residential situations and would likely be a actionable nuisance.

Just pull any Locked gate down and threaten them with legal action.

 

[Rob Legat - SBPL]

Don't listen to Tripe - he's incorrect, and damaging property is likely to get you into trouble.

To answer your questions, I first need to say that a full review of all the terms of the easement would be necessary. The small extract given indicates that it's in a fairly old style of drafting. Nothing wrong with that, but it does mean that there could be some important wording which you've missed - and it's easily done.

However, on general concepts, your answers are:

1. No, unless it constituted an unreasonable obstruction of your rights to use the easement. Merely placing a gate does not mean an unreasonable obstruction, especially as you are being offered the means of access. Remember that you have a right to a particular use of the property - not an interest in the land, or for anything further than that stated in the easement. Being required to use a gate has been held by the courts not to be an unreasonable interference with easement rights - especially if the servient tenement owner has good reasoning.

2(a). Insurance requirements? Generally the land owner's insurance should cover, and I don't see that you have an insurable interest as you merely have a right of use - not an actual interest in the property.

2(b). A properly worded easement will contain a statement about who is responsible for what aspects of maintenance. If the easement does not place an obligation on you to maintain the easement, then you are not required to do so.

3. It's arguable that the gate needs to be wide enough for vehicles, wagons and the like. A strict interpretation of the easement would seem to require so. However, a court may as easily deem that not necessary based on your comments that you only use it for pedestrian access and a vehicle would have no utility in being able to access the easement. If the easement is wide enough, a gate that supports reasonable access by pedestrians and vehicles would be difficult to argu against.

 

[Rod]

Agree with @Rob Legat - SBPL.

The law in QLD seems clear that only reasonable access needs to be given, not unobstructed access.

 

[Tripe]

Don’t listen to Rob,

You have full legal right to enjoy your easment, if you have had access without a gate for years, then placing an obstruction, even a gate with a key is obviously an extra burden to you and other users.

How do your friends, tradesman etc get the key to unlock the gate to access the easment?

In city situations, its normally deemed reasonable.

You also have the right to enjoy, the full dimensions of your easment, if this Acces is restricted (small gate opening) and you can’t get a large object through, then any obstruction can be removed.

For example, if the access is say 4m wide and the easment is 8m wide, most courts would view a 4m access as a reasonable opening for most people to access an easment.

 

[slou]

Thanks everyone for your comments here. I guess I am concerned that if we allow a pedestrian gate (which would be OK for our general daily use if not locked), this would later prevent us from accessing with larger equipment etc. because we had allowed the access area to be reduced, and that this could be an argument for the owner to ask a court to reduce the size of the easement as laid out in the title.

This is not something that we have needed to do much but if something comes up in future I'll be so annoyed with myself if we have given up our rights by trying to be reasonable and accommodating. It seems our neighbour's main concern is the leaves that blow through the open part of his fence where we go in and out.

 

[slou]

Our easement is 8 foot 6 wide. Part of this has been encroached upon by the current fence already, and a pedestrian sized gate would reduce it further