Breach of easement – neighbours at war?

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Many people will own properties that have the benefit of or are subject to an easement over a neighbouring property or their own.

Typically these will be for anything from a right of way so they have vehicle access to the property, to water rights from a bore or stream or drainage rights for storm water. There are many different types of easements and typically such rights are very important for the use and enjoyment of a property and allow for essential services and access.

What happens then when you and someone else who also has the right to use the easement disagree over the extent or use of that easement? You may be the person who has the right to use the easement over a neighbour’s property or it may be your property over which the easement runs and which is used by others. Either way the quick and efficient resolution of such a dispute is essential in order to ensure that property rights are maintained.

The Property Law Act 2007 and the Land Transfer Regulations 2002 (LTR 2002) sets out the process to be followed when a dispute over an easement cannot be easily resolved between the parties. The process is as follows:

Notice should be served by the party alleging a breach of the terms of the easement on the party that they consider to be responsible for that breach (defaulting party). The details of the breach or other obligation not fulfilled need to be specified; and

The notice has to make clear that the defaulting party has 7 working days to remedy the breach or obligation otherwise the party giving the notice may remedy the breach or obligation themselves and the costs of doing so (and the cost of serving the notice) are payable by the defaulting party.

If the dispute cannot be resolved as above or the dispute is of such nature that it does not lend itself to being resolved in this manner then as an alternative there are dispute resolution procedures in the LTR 2002. In short this provides that, as above, full details of the dispute are to be provided by the party initiating the dispute resolution procedure and the parties must then meet in good faith to try to resolve the dispute – this may be by way of negotiation or mediation or some other method. If the dispute is not resolved within 14 days of written details of the dispute being given to the other party then the dispute must be resolved by arbitration. The decision of the arbitrator would normally be final and the arbitrator will decide how the costs of the arbitration will be borne by each party.

Please consult with your lawyer if you find yourself involved in a dispute like this as it will be important to obtain specific advice on your particular circumstances and the terms of the easement which will be important in determining the procedure best followed.

Our thanks to Jared Cains for writing this article