Types of Easement Disputes
Disputes regarding easements can take various forms and involve many different questions of law and fact. Easement disputes of any form can have significant consequences for all parties involved and can have serious and irreversible effects on the ownership and value of the property involved.
Some common easement disputes include:
disputes regarding interpretation of the terms of a registered easement;
claims by one party that it has a right over another party's property;
disputes about who pays for what in relation to the easement;
disputes about the size, location and boundaries of an easement area; and
disputes about whether positive covenants are, or are not, enforceable.
Some examples of these types of disputes include:
disputes about whether the terms of an easement permit a certain use of the easement area;
claims by a party that it is entitled to an easement based on an existing use of another's property, such as where one party has accessed its property by crossing another party's property for some time;
disputes about who is responsible for the costs of repairing or replacing a cracked driveway which is subject to an easement;
disputes about exactly where an easement starts or finishes and whether an easement impacts on any structures on a property etc.; and
disputes about whether a covenant to equally contribute to the costs of repair of an easement area can be used by one party to force a particular positive action (e.g. sharing the costs of repair) from another party - particularly in relation to subsequent owners.
Positive Covenants in Easements (e.g. maintenance and repair)
Section 65 of the Property Law Act 2023 provides that a covenant in a registered easement that imposes an obligation, whether positive or negative, in relation to the use, ownership or maintenance of the burdened land, binds the grantor and the grantee of the easement, and each of their successors in title. Some qualifications on this appear in section 65. This is a fundamental change to the prior position at law that existed before 1 August 2025.
Landowners affected by easements should investigate their legal obligations in relation to the easement terms, as some terms of the easement (such as positive covenants) which were not enforceable before the commencement of the Property Law Act 2023 on 1 August 2025 may now be enforceable (as s65 applies to all registered easements, no matter when they were entered into).
Failing to recognise this could mean a landowner incurs unnecessary expense by not enforcing the positive covenant or could come at great expense to an easement right holder (including, for example, a buyer of land with easement rights attached to it) if an easement contains such a financial burden.
For example, a landowner may:
be entitled to the have an easement holder contribute to the costs of repair and maintenance in relation to an easement and not be collecting that; and/or
subsequently and separately ‘agree’ (e.g. by exchange of emails, text messages, letters etc.) to obligations it does not otherwise need to agree to.
For example, an easement rights holder may:
be liable to contribute to the costs of repair and maintenance in relation to an easement; and/or
not have been aware of the financial burden associated with the easement when the easement rights holder purchased the property with the easement rights attached.
Obtaining an Easement by Force - Statutory Right of User
The recent case of Ward v Hull [2019] QSC 32 highlights some critical matters to consider in relation to easement disputes and statutory rights of user. In Ward v Hull an adjoining owner sought an easement over a pipeline on an agricultural property in Mackay, QLD. The pipeline was installed on the cane farm property by the adjoining owner and the adjoining owner had used the pipeline on an ongoing basis for many years without any formal easement being recorded or registered.
The owner of the land accepted that the proposed easement was reasonably necessary in the interests of the effective use of the adjoining owner's land, but refused to accept the imposition of the easement – a refusal that the court ultimately found was unreasonable in the circumstances.
The result – the Court granted the adjoining owner an easement over the pipeline on the adjoining land to allow him to access the adjoining land, use the pipeline he had installed on the adjoining land, and water his own land by drawing water through the pipeline across the adjoining land and into his property.
This decision was based on Section 180 of the repealed Property Law Act 1974 (Qld), which provides a party with the opportunity to gain a right over an adjoining property, which can take the form of 'an easement, licence or otherwise'. This is referred to as a ‘statutory right of user’.
While an application to the Court is required for the grant of a statutory right of user, the benefits of a successful application make for a potentially very attractive prospect (depending on the circumstances).
Another common example of a statutory right of user is when the Courts grant a developer and its contractors the right to access and use land adjoining a development site for the purposes of swinging cranes over the adjoining land, or to access the land in some other way for the purposes of construction. Such access would otherwise be a trespass on the neighbouring land.
The authority in Queensland in relation to cranes swinging over properties that adjoin development sites is Lang Parade Pty Ltd v Peluso [2005] QSC 112.
Lang Parade Pty Ltd used tower cranes in the construction of two apartment buildings in Auchenflower, QLD. When not in operation and being allowed to free swing (known as weathervaning), the working arms of the cranes would swing over the top of the neighbouring properties, about 25 metres above ground level.
The neighbouring owners demanded that Lang Parade Pty Ltd either cease trespassing in their airspace or pay them compensation for the trespass. A number of offers of compensation were made to the landowners, however, each offer was refused.
An application to the Court was made by Lang Parade Pty Ltd under section 180 of the repealed Property Law Act 1974 (Qld) and the Court granted the developer a statutory licence to allow the cranes to swing into the airspace of the neighbouring properties.
Before considering an application for a statutory right of user, and preferably before relations with a neighbour deteriorate, parties should consider the various requirements of section 180 of the Property Law Act 2023 (Qld).
Particularly, it is important to note that the Court is unlikely to grant a statutory right of user to a party who has not engaged in reasonable attempts to resolve the matter with an adjoining owner.
This is largely due to the fact that an adjoining owner's refusal must be found to be unreasonable in the circumstances, which cannot be shown if the adjoining owner is not given the reasonable opportunity to come to terms.
In the recent case of 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 [2016] QSC 40, the Court held that the adjoining landowner was not provided with enough detail in relation to the proposed access and therefore their refusal could not be considered unreasonable.
How We Can Help
It is critical that parties involved in any easement dispute obtain detailed legal advice on their position from the outset, as even basic communications and steps taken at any stage of a dispute can have a determining effect on the outcome of the matter.
Our team have extensive experience acting for clients in a vast array of easement disputes, including those types of disputes listed above, and have the expertise and technical edge to ensure that your rights are protected and to give you absolute peace of mind.
Our Legal Practitioner Director, Simon LaBlack, is one of only 25 Accredited Specialists in Property Law in Queensland. He acts as a Court-appointed statutory trustee for sale and consults to other law firms on complex property related matters. He has extensive experience in Property Law in Queensland having personally handled thousands of Property Law matters. He has led multiple teams consisting of lawyers and paralegals, with a specific focus on the training of legal staff and the implementation of effective systems and processes to improve outcomes for both his clients and his team.
Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as at the date of publication. It is not, nor is it intended to be, legal advice. If you wish to take any action based on the content of this publication, we recommend that you seek professional advice.