Legal Essay On Easement Dispute Between Hogg And Van Olsen.

Mr Hogg and Ms van Olsen had been neighbours without disagreement for some 20 years until 2016, when Mr Hogg tried to stop Ms van Olsen from using the inclinator. The parties are now in dispute. Ms van Olsen has sought your advice on a number of matters, including:

1. Do the terms of the easement require Mr Hogg to allow Ms van Olsen to continue to be able to use the inclinator so that she can access her property?

2. If so, what orders could Ms van Olsen seek from the Supreme Court of NSW to enable her to continue to use the easement? Does Ms van Olsen have any other ‘self help’ remedies available to her and, if so, should she use them?

3. If Ms van Olsen can continue to use the inclinator, who must pay for the maintenance and use of the inclinator, including the electricity to run the inclinator? What matters would be relevant to you opinion on this?

4. Can the parties do anything else in the circumstances to attempt to reach an agreement suitable to both without resorting to the need for litigation, including any variation of the easement? 

Background and key issues

In this particular instance, Ms Van Olsen has asked me to advise her on the following key issues:

Whether or not, do the terms of the easement require Hogg to permit Ms Van Olsen for the continued ability to use the inclinator, so that she could access her property?

In case this is possible, what are the possible orders which can be sought out by Ms Van Olsen from the NSW SC so that she could be allowed to continue using the easement? And whether or not can Olsen take any other kind of self help remedies which are normally available and if so, can she use those?

Whether or not, can Olsen continue the use of the inclinator? And who is liable for the payment for the use and maintenance of the same, including the charges for the electricity, for running the said inclinator?

Whether or not, can the parties do something else for reaching an agreement which is suitable for the both, without going forward with the requirement of litigation?

Section 54A of the Conveyancing Act, 1919 provides that the contracts for sale of land, has to be in writing. As per this section, a proceeding or action cannot be initiated for a contract for sale or disposition of land, or the interest in it, until such contract is in writing and the same is signed by the parties, or by an individual who has been legally authorized by the parties (Australasian Legal Information Institute, 2017a).

Section 88B of this act puts forward the provisions regarding the creation, as well as, release of easements, restricts and profits à prendre regarding the usage of land as per the plans. When a instrument is created under this section, it creates the restrictions, easements and profits à prendre regarding the positive covenants and use of land (NSW Government, 2017).

Section 28.2 of the Uniform Civil Procedure Rules 2005 provides the powers to the court for making an order regarding the decision on a particular question in a separate manner from the other questions, and this can be done after, before or at the trial or further trial during the proceedings (Australasian Legal Information Institute, 2017b). Brereton J, in Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988, had awarded an injunction against the servient owner who had removed the ashphalt paving, and who had also replaced the same with an inferior glass surface (Jade, 2008). In Prospect County Council v Cross (1990) 21 NSWLR 601 at 608-610, it was held that when the rights of way, available to an individual has been in reality and substantially interfered, the same become actionable without any doubts (Esmaeili and Grigg, 2016).

Rules and provisions governing easements

In the case of Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324, the management of pedestrian traffic over the servient tenement, the vehicle was held to have the possibility of creating problems. And this includes the problems relating to the safety of public, in particular at the peak times. So, it was held that these particular matters were under the ambit of the planning authorities. The question of excessive user or the construction of the grant was not affected by it. Even though the person authorized by the servient owner and the servient owner himself have the authority of using the servient tenement, there was a lack of evidence which could establish that the increased use by the dominant owner could be deemed as unreasonable interference with the reasonable usage by the servient owner of the servient tenement (Gravells, 2013).

Young J in Butler v Muddle (1995) 6 BPR 13984 at 13986 provided that it cannot be deemed as reasonable for the owner which is dominant, to appropriate the land and use of the servient owner without their consent, even when the same was their own (Hepburn, 2013). In Owners of Strata Plan 48754 v Anderson & Anor (1999) 9 BPR 17,119? [1999] NSWSC 580 and in Bland & Anor v Levi & Ors (2000) 9 BPR 17,517, it was stated that such ancillary rights could be deemed as extensive, and may vary in nature, along with this, their categories are not closed (Norton Rose Fulbright, 2012).

Though in such cases, the view of a reasonable person helps. In both Owners of Strata Plan 48754 v Anderson & Anor (1999) 9 BPR 17,119, as well as, in Lyttleton Times Co Ltd v Warners Ltd [1907] AC 476 at 481, it was held by the court that if the ancillary rights which a prudent bystander would have expected to have passed with the grant, there would be a derogation from the grant of easement, when such is denied (Swarb, 2015).

The servient tenement owner has the sanction to treat the fixtures over the servient land, as is present with a full owner, till such an extent where the same is inconsistent with the rights which can be exercised by the dominant owner.  For instance, in Burke v Frasers Lorne Pty Ltd, the same was held as being inconsistent with the right of the dominant owner regarding the construction and forming a carriage way, over the site of an easement, in such a case where the dominant owner, who has constructed such a carriage way could not be established or deemed as excessive, the servient owner could substitute and inferior one or disrupt the carriage way even when it would allow reasonable access (Australasian Legal Information Institute, 2017c).

Precedents related to easements and excessive usage

The servient tenement holders cannot be held to make out any or all the repairs, until and unless, the same has been set out in the contract in an express manner. Moreover, such obligations are not binding or cannot run through or at the common law (McCarthy, Chalmers and Bogle, 2015). Section 88BA of Conveyancing Act, 1919, prohibits the registration of these (NSW Legislation, 2011).

There are certain options available to the parties in case of dispute, where they can easily resolve the dispute and reach an amicable decision (Moffitt and Bordone, 2012). These are known as the alternative dispute resolution techniques, whereby, instead of using the litigation, the parties can opt for methods like arbitration, conciliation, facilitation, negotiations, and mediation. These are considered as the best mode for solving the disputes or issues in a confidential and swift manner (Nolan-Haley, 2013). Under the process of negotiations, the disputes are resolved by discussing the disputes, by speaking or writing the same. Under mediation, an impartial individual, known as the mediator, is appointed, who helps in carrying out the negotiations between the parties. The next mode is facilitation, which is quite similar to the mode of mediation (Genn, 2009). However, in this method, the matters are resolved only when the parties which are involved in the dispute, are groups. Another method if conciliation, where the advice of the conciliator, who is again an impartial individual, resolves the matter. The last is arbitration, where one or three arbitrators, who are selected between the parties, in a mutual manner, resolve the dispute (Tania, 2008).

In this particular case, the easement was created as per section 88 of the Conveyancing Act, 1919 (NSW). Due to the disagreement after twenty years, i.e., in 2016, a dispute was raised between the two parties. In this case, as Section 28.2 of the Uniform Civil Procedure Rules 2005 empowers the court to make an order on any decision, an application can be made to the court by Olsen for getting a declaration regarding her entitlement to use the inclinator. Along with this, she can seek an injunction order so that Hogg can be restrained from impeding the use of the inclinator by her or her agents in a substantial manner (Justis, 2017).

The key issue here revolves around the use of inclinator by Olsen, which has been conferred on her as the dominant tenement owner of the easement. Hogg had made an attempt to stop Olsen from using the inclinator. A contention can be made by Hogg which relates to the going, passing or re-passing for all purposes and at all times, with vehicles or with or without animals, or both, from the dominant tenement. The point raised in this is that such grant allows a passage, but not a halt at that place (NSW Caselaw, 2015).

Liability for easement maintenance and usage

This argument is underpinned in the common grounds of the proceedings, as per which, the rail and inclinator vehicle are deemed as fixtures and so, they cannot be moved. The case which can be made by Hogg here is that the vehicle is a fixture and a part of the servient tenement of the first defendant states that Ms Van Olsen was not authorized by grant to use it without the consent of Hogg, and so, the plaintiff had to bring their own vehicle for usage purpose over this easement. However, this argument is not persuasive as proper consideration is not given at the wordings of the easement (NSW Caselaw, 2015).

The wordings of the easement nowhere provide a limitation on the vehicles being used to pass or re-pass to be owned or supplied by the servient tenement or the dominant tenement of this easement. Even though the claim of Hogg can be deemed as correct that as per the ordinary right of carriage way, the right of carriage and passing over with such vehicles lies with the dominant tenement, but this case is different. The servient tenement embedded vehicle does allow the dominant tenement owner to re-pass, pass or go for all purposes and at all times, though the same is not the vehicle of the dominant tenement (NSW Caselaw, 2015).

The law regarding the easement balances the dominant tenement’s competing rights regarding the fixtures present over the servient land. The principle behind this is that the dominant owner only has such rights which are necessary implications or found expressly in grant terms (NSW Caselaw, 2015). Applying the case of Burke v Frasers Lorne Pty Ltd, a basis cannot be made in the defendant being the owner of the fixture for arguing an ownership over such fixtures, which could allow him to use these fixtures, in an inconsistent manner, with the exercising of rights granted through the easement to Ms Val Olsen, who is the dominant owner. And so, for these reasons, the easement provides the right or the entitlement to Olsen regarding the usage of the inclinator. However, the same have to be such rights which are reasonable and important (Rendel, 2012).

Olsen can claim that as per Sertari Pty Limited v Nirimba Developments Pty Ltd, as well as, Butler v Muddle, the use of inclinator is rationally essential for the reasonable and effective enjoyment and exercise of the rights which have been granted in an express manner. As per Owners of Strata Plan 48754 v Anderson & Anor and Lyttleton Times Co Ltd v Warners Ltd, a reasonable bystander who has the knowledge about the physical circumstances of the land, would also have anticipated that the ancillary rights would be granted for the use of inclinator down the entire and complete length of the easement due to the easement (NSW Caselaw, 2015).

Self-help remedies and alternative dispute resolution options

This is due to the right of way, which could not be effectively or reasonably enjoyed without the same. Hence, the same has to be deduced principally as there is a non-availability of another mode of travelling through this easement. And even if the solicitor of Hogg shows that there is another way to access the inclinator by foot, a number of problems can be raised in this. The key one here is that the dominant owner is not required to establish, as per the cited cases, that no use of easement is possible without this particular inclinator. But the test here is one of the reasonableness, and as per the reasonable test, the argument of Olsen would be correct. Hence, it can be concluded that Ms Olsen is entitled to use the inclinator, as being the ancillary right of use of this particular easement. And this would remain true even when there is an absence of the express rights of use (NSW Caselaw, 2015).

The law governs that Ms Van Olsen is not required to pay for the charges unless the same has been provided in the contract. As per the terms for the payment of maintenance, use and charges of the electricity for continued running of the inclinator, have not been mentioned in the contract, Ms Van Olsen would not have to pay for the same. However, due to the continued use of inclinator on part of Ms Van Olsen, Hogg can challenge her usage. And in such a case, an order could be made by the court for the charges to be equally born between the parties, as they both are the users of the inclinator (Australasian Legal Information Institute, 2017d).

There are a lot of issues which can be brought forward by Hogg, which can result in continued or prolonged litigations. In order to deal with such circumstances, so that an attempt can be made to reach an agreement, which proves suitable for the both, without adopting the litigation method, the parties can resolve to the ADR techniques highlighted earlier. This can be coupled with bringing variations in the terms of the easement. For instance, the parties can mutually decide that to carry out any maintenance work, they would seek each other’s permission and this would be accepted or denied in a reasonable period of time, along with the reasons for the same. Along with this, they could also specify the preferred method of ADR to be used in such circumstances, for resolving the arisen dispute.

Possible orders from the NSW Supreme Court

Conclusion

On the basis of the above application, it can be concluded that:

The terms of the easement put an obligation as per the explanation provided above, on Hogg to allow Ms Van Olsen for the continued ability to use the inclinator, so that she could access her property. Though, the same have to be reasonable and important purposes.

As she has the entitlement to use the inclinator, Olsen can seek two orders from the NSW SC so that she could be allowed to continue using the easement. The first order relates to making an application to attain a declaration, which would act as a proof that she is entitled to use the inclinator. And the second one relates to applying for an injunction order in order to restrain Hogg from impeding the use of the inclinator by her or her agents in a substantial manner. As these two orders would be sufficient in providing the required remedy by Ms Val Olsen, there is no need to use the self help remedies, which are otherwise available in such cases.

Ms Van Olsen, would not have to pay for any such expenses as the terms of the contract, nowhere stated that there was a need on part of her, to pay for the use and maintenance of the same, including the charges for the electricity, for running the said inclinator. However, due to the continued usage of the same, the same can be challenged. And in such case, she would have to bear these costs equally with Hogg.

The parties can opt for any of the techniques of ADR to resolve the dispute and reach an agreement, which could include amending the terms of the easement or some other method, as decided through these techniques. 

References 

Australasian Legal Information Institute. (2017a) Conveyancing Act 1919. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/ [Accessed on: 06/05/17]

Australasian Legal Information Institute. (2017b) Uniform Civil Procedure Rules 2005 - Reg 28.2. [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s28.2.html [Accessed on: 06/05/17]

Australasian Legal Information Institute. (2017c) Richard Van Brugge & Anor v Meryl Lesley Hare & Anor [2011] NSWSC 1364 (4 November 2011). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2011/1364.html?stem=0&synonyms=0&query=1364 [Accessed on: 06/05/17]

Australasian Legal Information Institute. (2017d) Van Brugge & Anor v Hare & Anor [2011] NSWSC 1640 (20 December 2011). [Online] Australasian Legal Information Institute. Available from: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2011/1640.html?stem=0&synonyms=0&query=Richard%20Van%20Brugge [Accessed on: 06/05/17]

Esmaeili, H., and Grigg, B. (2016). The Boundaries of Australian Property Law. Melbourne, Victoria: Cambridge University Press.

Genn, H. (2009) ADR and Civil Justice: what’s justice got to do with it?. In: Judging Civil Justice, The Hamlyn Lectures. Cambridge: Cambridge University Press, pp. 116.

Gravells, N. (2013) Landmark Cases in Land Law. Oxford: Hart Publishing.

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