19 December 2023

Obsolete Easements

So you’ve discovered you have an easement over your property for the benefit of an adjacent landowner! And as far as you know, it hasn’t been used for decades. Should be easy to get it removed, yes? Unfortunately, no!

A recent case in the Supreme Court of Queensland dealt with this situation. The landowner in question had the benefit of an access easement since 1988, over the adjoining land, limited to transporting and distributing coal. That easement did not provide him with a general right of access. Over the years, the easement was no longer fit for purpose and not used.

The adjoining landowner, whose land was subject to the easement, had their land re-zoned, and carried out works on the land, including a fence, which had the effect of obstructing the easement and ‘landlocking’ the landowner who had the benefit of the easement.

The benefitted landowner sought the assistance of the Court to have the obstructions over the easement removed, thus allowing him full and free access over the easement (despite the fact that the easement did not, in fact, grant that type of access). He went onto ask the Court to modify the existing easement, under s 181 of the Property Law Act 1974 (Qld), so as to grant him access to and from his land. However, he also refused to consider payment of any consideration to the adjoining landowner in return for such a modified easement.

The adjoining landowner argued that the easement was now obsolete and, in any event, the purpose of the access was limited to coal facilities. They offered to negotiate a new easement, giving full access rights and in a new position, but that offer was not accepted.

Despite the easement no longer being used for the purpose for which it was granted, the position at common law is that, for an easement to be considered obsolete, the easement must lack utility and use of the easement must be impossible or impractical.

In this case, the Court held that, even if the easement was obsolete at law, the benefitted landowner was unable to rely on s 181 to have the easement modified so as to grant the full access he sought. The Court emphasised that, because the Court had a discretionary right to extinguish or modify an easement under s 181, it would not exercise that discretion in favour of the benefitted landowner largely because no compensation had been offered in relation to such a modification.

Key takeaways

  1. Do you have any plans to develop the land, which obstructs an easement on your land that provides a benefit to an adjoining owner?
  2. If so, you should contact the benefitted landowner to negotiate, if possible, a modification, or surrender, of the easement or propose a new easement with an appropriate purpose, over a different area of your land, in exchange for the surrender of an existing easement.
  3. A landowner who has the benefit of an easement, has no absolute right at law to require modification of an existing easement, if the benefitted landowner, particularly if they refuse to
    consider paying adequate compensation to the affected landowner.
  4. If you are unable to reach an agreement with the benefitted landowner, there is a potential for dispute. You should keep all records of the attempts you have made to negotiate with the benefitted landowner to aid you, should that dispute result in a Court hearing.

If we can assist you regarding an easement over your property, please let us know.