Easement disputes and strata law | Section 88K of the Conveyancing Act 1919 applications | Supreme Court of NSW’s power to grant easement under section 88K | What is an owners corporation’s rights in NSW?
In New South Wales, section 88K of the Conveyancing Act 1919 enables the Supreme Court of New South Wales to grant an easement over neighbouring land provided certain requirements are met, including:
(a) the easement required must be reasonably necessary for the effective use or development of the land to benefit from the easement;
(b) use of the land with the benefit of the easement must not be inconsistent with the public interest;
(c) the owner of the land burdened by the easement can be compensated for any loss or disadvantage as a result of the easement; and,
(d) all reasonable attempts have been made to obtain the easement.
Much of the caselaw concerning section 88K applications involve an analysis of whether in the particular case the easement is “reasonably necessary” and whether “all reasonable attempts have been made to obtain the easement”.
However, each of the above requirements listed above are the subject of the particular circumstances of the case and would have to be examined and applied with reference to the decided cases.
The Supreme Court of NSW’s power to grant an easement is discretionary so it is not as simple as one may think. The Court will need to be convinced to use the power under section 88K to grant an easement that will permanently impact on your neighbour’s land.
A common misconception is that if the plaintiff (applicant of the section 88K application) obtains the Court order granting the easement that the defendant (the losing party) is required to pay the plaintiff’s costs. Unfortunately, it is not that straightforward. The costs of a section 88K application are normally paid by the plaintiff (the person asking for the grant of an easement) but are subject to any order of the Court to the contrary. Even if a costs order is made against a plaintiff, there will still be costs incurred by the defendant (the person objecting to the grant) that will not be recoverable from a plaintiff.
Therefore, if an owners corporation has received a letter from their neighbouring land owner seeking the imposition of an easement over common property, the owners corporation’s executive committee and strata managing agent should consider the request and address it as far as possible before, and even during, any Court proceedings (if legal action becomes necessary). In Court proceedings the Supreme Court of NSW will consider concerns raised by the neighbour, and often will also consider any negotiations between the parties, especially when considering any orders for the costs of the proceedings.
Pobi Lawyers specialise in easement disputes. If you are being asked to grant an easement pursuant to section 88K of the Conveyancing Act 1919 or are involved in a dispute, we can assist in ensuring you achieve the best outcome. Call us today on (02) 8710 3430 to arrange an appointment.
Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.
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