Often landowners are asked by neighbouring developers to agree to an easement over their property, with the “threat” of a resort to the courts if the request is not accepted. Easements that have been commonly sought include for drainage, scaffolding, crane swing, and rights of right. Do you have to say yes?
Section 88K of the Conveyancing Act allows for imposition of easements by the courts where it can be shown that:
- 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.
Whilst many landowners consider their “home to be their castle” and do not wish to grant any easements over their land, if you are the recipient of a request for such it is unwise to reject the request out of hand. There are many cases where such easements have been imposed by the courts at some cost to the landowner.
In a recent case a landowner was offered various amounts for compensation (up to a maximum of $40,000.00) for an easement for pipes in an area that was along one boundary and predominantly in the building set back area. The landowner demanded that instead he should receive $250,000.00 in compensation. Ultimately the easement was found to comply with the various requirements of S.88K and was granted by the Court with only $21,500.00 compensation. To rub salt into his wounds, the court further held that because of the unreasonable refusal of the landowner to accept the request for the easement, and refusal to accept the various offers of compensation which the court found were more than adequate compensation, the landowner was also ordered to pay the costs of the developer in making the application to Court.
Whilst not all requests for easement will be successful at Court, if a developer makes an application to a landowner substantially in accordance with the provisions of S. 88K, then it is most likely to obtain the order, and landowners should negotiate reasonably in regard to any such requests. You should obtain an independent valuation of the proposed easement, and negotiate with that in mind.