Close the gate! Another win for Bailiwick Legal

In a win for common sense, Bailiwick Legal has successfully argued that the true nature and purpose of an Easement granted is to allow specific passage and not just free access to all.

 

The Supreme Court dispute between farm land neighbours centred on the terms of an access easement over our client’s land.   This was used by the neighbour to access the dominant tenement, but then also as a short cut to other parts of the farm owned by the neighbour.

The neighbour was opposed to closing boundary gates on the easement, despite this being an express term. They also refused to leave a midway gate as they found it, contrary to farming protocol.

The Court found, following near 400 years of authority that the terms of the easement provided access to the dominant tenement only and did not provide for passage to other areas of the farm.  The Court also determined that in this case, misuse of the easement was a trespass on our client’s land and awarded damages to be paid to our client for such trespass.

In its case, the neighbour complained that their access across the easement was obstructed by gates which they had to open.  On this issue, the Court determined that gates can be put across an easement by the owner of the underlying land provided that they do not substantially interfere with the lawful use of the easement.

When an easement exists, it is important for all parties to know and understand the rights and obligations that arise under the grant of the easement and ensure that their actions are lawful and consistent with the terms of the easement.

Given that easements are always on someone else’s land, it is perhaps just as important to be understanding and respectful of your neighbour whose land the easement crosses.

 

If you would like more information on this or would like to discuss your issue, please contact Philip Brunner at Bailiwick Legal – phil@bailiwicklegal.com.au or call (08) 9321 5451. 

The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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