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When Can You Refuse a Neighbour’s Request for an Easement Over Your Property?

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Commercial Law
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What is an easement on my property?

An easement on your property is a proprietary right of another person or entity (such as the owner of a neighbouring property or Council) to use your property for a particular purpose. Common examples include easements for service, roads, the erection of scaffolding or use of airspace for a crane swing by developers and rights of carriageway.

Do I have to give an easement?

It is not always necessary to give an easement over your property however if a reasonable request is made to you, it is unwise to reject the request out of hand.

 

In NSW, courts have the power under section 88K of the Conveyancing Act to grant an easement over your property if:

 

  • the easement is reasonably necessary for the effective use or development of the land obtaining the benefit of the easement,
  • the use of the land requesting the benefit of the easement is not inconsistent with public interest;
  • the owner of the land to be burdened by the easement can be adequately compensated; and
  • all reasonable attempts have been made by the developer to obtain the easement directly from the land owner and such attempts have not succeeded.

 

A number of cases exist in which subsequent to a landowner’s refusal to grant an easement, the court has awarded the easement at some cost to the landowner. See case example below.

Am I entitled to compensation for easement on property in NSW?

Yes, you are entitled to adequate compensation for easement on property in NSW as outlined in section 88K of the Conveyancing Act.

If you are asked to agree to an easement on your property, we recommend having the easement valued to ascertain what compensation is adequate.

It is important that you do not unreasonably refuse to give an easement, particularly if you have been offered adequate compensation. See our case example below.

A useful case example

In the 2014 Supreme Court case of ABI-K Pty Limited v Frank Shi, a landowner was offered significant compensation (up to a maximum of $40,000.00) for an easement for pipes along one boundary and predominantly in the building set back area of his property. The landowner refused the request and demanded compensation to the value of $250,000.00.

The Court considered whether the easement complied with the requirements of s88K and ultimately awarded the easement and compensation to the value of $21,500.00.

To rub salt into his wounds, the court further held that taking into account the significant compensation offered, the landowners refusal to grant the easement was unreasonable and consequently ordered the landowner to pay the developers costs in bringing the application.

Legal Advice

Do you have an easement property law question? Do you want to know what reasonable stormwater easement compensation is? Are you looking for easement solicitors/easement lawyers? Atkinson Vinden Lawyers have a team of dedicated property lawyers who can help answer all your questions. Get in touch with one of our team members, today.