Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 7 May 2016.
John’s property has the benefit of an easement over his neighbour’s property, of which Jane is the owner. The easement is a right of carriageway that allows John to drive across the rear of Jane’s property to access his garage. There is no other way for him to drive onto his property.
Jane is generally unhappy about John’s ability to drive across her property, and has taken steps to frustrate his ability to do so. She plans to commence renovations which will involve building exactly up to the boundary of the easement. She has planted trees and placed potted plants on the easement and she regularly parks her car on the easement.
Jane has said to John that he does not need the easement and that she is going to fence it off.
John seeks legal advice regarding Jane’s threats. He also wishes to know whether he can asphalt the easement and whether he can park on the easement.
The solicitor advises John that Jane is entitled to build up to the boundary of the easement and is free to place trees and plants on the easement, provided it does not amount to a “substantial interference” to John’s ability to use the easement.
John is also advised that Jane is able to park her vehicle on the easement, provided it can be moved on short notice.
Although John has the right to keep the easement in usable repair and is able to access Jane’s property for this purpose, he does not have the right to perform any further works, such as asphalting, unless it is necessary to enable use of the easement.
John is informed that his right to use the easement does not extend to parking on the easement, although he is entitled to temporarily halt.
While Jane has the right to place a lockable gate across the easement, provided John is given a key, she is not permitted to fence it off completely.
John’s solicitor writes to Jane, explaining her obligations and no further action is required.
