What is an easement and how does it relate to parking in a strata scheme? This article by Fatimah Omari (law student).
What is an easement?
An easement is a proprietary interest that permits a person to use or access land owned by another person.
Common examples of easements include:-
- Rights of way, which generally allow access to land by foot or vehicle;
- Service easements, including drainage and sewerage easements used by property developers for storm water and sewerage access.
What are the essential characteristics of an easement?
The four requirements for a valid easement are as follows (Re Ellensborough Park (1956) Ch 131):
- There must be a dominant tenement (property that will
benefit from the use of the easement) and a servient tenement (property
burdened by the easement). This requirement is also enshrined in s
88(1) of the Conveyancing Act.
An exception to this
requirement is found in s 88A of the Conveyancing Act, which states
that an easement without a dominant tenement, known as an easement in
gross, may be created in favour of the Crown, a local/public authority
or a corporation prescribed by the regulations.
- An
easement must ‘accommodate’ the dominant tenement, that is, the right
granted needs to be connected with the normal enjoyment of the
benefited land.
- The dominant and servient tenements must be owned by different people.
- The right which the easement purports to create must be capable of forming the subject matter of a grant.
Is the right to park a vehicle on a parcel of land a valid grant of an easement?
The recent case of Brydall v the Owners of Strata Plan 66794 [2009]
NSWSC 819 confirmed that the grant of a right to park a vehicle in a
strata title development is capable of being classified as an easement.
In this case, a registered plan of subdivision, accompanied by an
instrument under s 88B of the Conveyancing Act, created an “easement
for parking” which permitted the owner of Lot 1 (the dominant tenement)
to park on Lot 2 (the servient tenement).
Justice McDougall held that the four requirements for creating a valid easement had been met.
Justice McDougall arriving at this conclusion by considering an
additional significant factor: proportionality. Since the site of the
easement was less than 15% of the whole of Lot 2 and did not encroach
on existing parking spaces and buildings, the easement could not be
said to interfere with the effective use of the proprietary rights held
by the owners of Lot 2. Therefore, a valid easement had been created.
Furthermore, the terms of the easement specified that the easement is a
“full and free right” for the owners/occupiers of Lot 1 to park
vehicles on the designated site. The court held that this “full and
free right” could not be adequately exercised if the owners of the
burdened lot 2 also parked their vehicles on the site of the easement.
Therefore, the instrument creating the easement was construed to
exclude the owners of Lot 2 from parking on the site.