August 2009

Good easements - it's all in drafting the terms

A recent judgement by Justice McDougall of the Supreme Court of NSW in Brydall v The Owners of Strata Plan 66794 [2009] NSWSC 819 is another good example of why it is important to give detailed thought to the terms to be included in and applied to an easement.

The facts

The Owners Corporation own the common property of Strata Plan 66794 and Brydall owns an adjoining lot.

Brydall's land has the benefit of an easement for parking over a small part of the common property.

The disputed easement terms were:

\"full and free right for every person who is at any time entitled to an estate or interest in possession in the lot benefited or any part thereof ... and every person authorised by such person to park motor cars, motor vehicles, motor carriages and/or trailers on part of the lot burdened, but only within the site of this easement\". 

The dispute developed over the use of the easement.  Brydall asserted that its right to park was exclusive to it and the Owners Corporation asserted the right was not exclusive to Brydall.

The Findings

Firstly, Justice McDougall said it appears clear in principle that an easement for parking may be a valid subject matter of the grant of an easement.  Whether or not a particular parking easement gives exclusive rights to the party having the benefit of that easement will  depend on the facts and degree in each particular case. 

His reasoning adopted a \"proportionality test\" used in the decision of Weigall v Toman [2008] 1 Qd R 192. In that decision the court found that what is important in the interpretation of exclusive easement rights is proportionality. Proportionality between the relevant importance or significance of the easement area to the owner of the land burdened over which an exclusive right is given when compared to the land as a whole.

Looking at the facts, Justice McDougall found the easement area to be quite small compared to the overall land, it did not encroach on any of the defined parking spaces within the land nor did it impede access to or the efficient use of the land burdened.  He said, while it may have been convenient for the owners or occupiers of the land burdened to use the easement area, proportionality does not depend on mere convenience. 

More importantly, the question is whether the rights granted in the easement impede the reasonable use of the land burdened as a whole. In this case, they did not.

Secondly, the Judge said the rights granted by the words \"full and free right\" to park could not be enjoyed by Brydall if the owner of the land burdened also asserted a right to park their vehicles within the easement area.  To the extent that other vehicles were parked in the easement area the full and free right granted in the easement is cut down and constrained.

The easement terms also expressly reserved right for the The Owners Corporation to permit services to pass through or upon the easement, to grant easements for services and to do anything else reasonably necessary for those purposes.  The fact that the rights were expressly reserved was inconsistent with the proposition that the reserved rights also include an implied right for the owners of the land burdened to park within the easement area.

This reasoning brought Justice McDougall to the conclusion that the right to park was exclusive and no implied right to park could exist without limiting that exclusive right:

\"the combination of the grant of a full and free right to park, and the express reservation of very limited rights, confirms that the full and free right ought to be construed as exclusive of any right on the part of the owner of the servient tenement, or those authorised by it, to park on the site of the easement.\"

What the case shows us

The decision is important because it indicates that an easement for parking can amount to an exclusive right to park vehicles.  This will depend on the facts and circumstances of any particular matter.  Normally, in the case of easements, the right to use the easement area is not exclusive to the party with the benefit of the easement, such as a right of way, it is shared.

The case also reminds us of the importance to make sure that in either obtaining the benefit of or granting an easement, the correct easement terms are selected for the intended use of the easement area. 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.

Nick Eckers