What are the relevant issues in relation to Easements?

07/12/2020

The relevant issues in relation to Easements include:

1. What are the terms of the proposed Easement including the parties’ rights and obligations?
2. Whether the Easement is reasonably necessary for effective development of the land.
3. Whether the Easement is not inconsistent with public interest.
4. What are the alternative proposals to the Easement which is the most appropriate Easement?
5. What is the appropriate compensation to be paid?
6. Who pays the legal and other costs of the parties?
7. Whether all reasonable attempts have been made by the Plaintiff to obtain the Easement requested.

The appropriate compensation payable includes compensation for:

1. Blot on title.  This is the value to be associated with the registration of the Easement as such which establishes a blot on title.
2. The diminution of the value of the land covered by the measure/size of the area directly affected by the Easement – one calculates this on the basis of a percentage of the unencumbered value of that land.  One looks at how much the land is devalued due to the Easement.
3. Compensation for the inconvenience whilst the construction of the Easement works are carried out.
4. The inconvenience associated with the cost of maintenance of the Easement.

Costs

The usual rule in relation to costs pursuant to Section 88K(5) of the Conveyancing Act is that the Applicant (the person seeking the benefit of the Easement) is to pay the cost of the Defendant/s (who provided the Easement).

In some circumstances the Applicant makes an Offer for Compromise including amongst other matters, the amount of compensation payable. 

Even if the Offer of Compromise is more than the amount eventually awarded by the Court, usually the Rule of Section 88K(5) applies and that the Applicant (the person seeking the benefit of the Easement) is to pay the cost of Defendants who provided the Easement.

The difficulties that arise include that the costs are often a multiple of the compensation that would be payable in particular most often, if the matter is not resolved at an early stage.  The earlier the matter can resolve the greater the saving of legal fees and expenses.

The Defendant/s who receive the compensation will have it eaten away by the shortfall in the recovery of costs especially if the costs are payable on a party/party/ordinary basis.

In a recent review of approximately 20 recent cases decided in the last few years, we have ascertained:

1. In many of those cases parties have briefed Senior Counsel to argue their cases.
2. More than 50% of those cases were unsuccessful, primarily on the basis that the Plaintiff failed to prove one of the elements required to obtain the Easement.
3. In our view, a major failure seems to be that the Applicant who is seeking an order is unaware even up to the stage of Mediation (which occurs after Court proceedings are commenced and the parties have filed their evidence), that the Applicant is most likely required to pay the cost of him or herself and each of the Defendant/s.  This seems to us to be unfortunate as a misapprehension as to who will pay the costs can lead people into believing that if they win the case (that is obtain an Easement), they are likely to receive a Cost Order in their favour.  However in almost all cases, even if the Plaintiff obtains an Easement, the Plaintiff will have to pay the costs of all parties.

Our experienced Lawyers at Watson & Watson understand the complexities that often times develop in Easement matters, whether you are seeking to obtain the benefit of an Easement from your neighbour/s or have been approached by a neighbour seeking the benefit of an Easement from you.  In an initial conference, we will discuss the matter with you and provide our advice and recommendations and alleviate any concerns you may have going forward in relation to you either obtaining an Easement or you granting or opposing the grant of an Easement.

Please contact Watson & Watson Lawyers in relation to your Easement matters by contacting Richard Watson Accredited Specialist Commercial Litigation stream of Building and Construction or his Personal Assistant Shereen DaGloria to discuss your matter and seek the appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.