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Topic-icon 'JUNK' (or redundant and obsolete) Property Easements

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7 months 2 weeks ago #541995 by xylstra

Are you a hapless property owner saddled with a defunct, 'junk' Easement encumbering your propety title that the counter-parties refuse to surrender even though it is no longer used and is now redundant? Sure, you may fool yourself that you'll just carry on ignoring it but this is not the legally correct solution - it needs to be formally extinguished! By now you will almost certainly know that as things currently stand, only the High Court has the power to squash it which will have you sitting uncomfortably since that large lump in your back pocket amounts to $10,000+++! Yep, that (and more) is what it takes for the High Court to solve a $1 problem. Ouch!... an outrageously expensive way just to tell your neighbours to use their common sense!
There has to be an easier way.
Well, maybe there is:
I have approached our local National MP to promote the idea of a 'Local Bill' to enable affected property owners to quickly and cheaply remove these junk Easements. Essentially, an applicant would submit a "Staement of Circumstances" (effectively, a Statutory Declaration) accompanied by supporting evidence (e.g. Engineer's Report, Photographs, Diagrams, Maps, etc) and if all is in order the Notice of Extinguisment is rubber-stamped upon payment of a small fee. This would be handled in the back-offices of the court not requiring a formal court session. ...you get the general idea.
However, while expressing understanding of my own case he is reluctant to invest the considerable amount of time, money and effort required if I were the only one to benefit. He (quite reasonably) has requested more examples of these situations to provide the necessaary ammunition and impetus to push the legislation forward.
That's why I need your help. If you are one of those affected property owners who would like to have access to this piece of legal machinery to purge your own property title then I need to hear your case to on-forward it for inclusion in the project. Off-the-cuff anecdotes are of no use, detailed naratives are required i.e. inclusion of title numbers, dates, pictures, contact details, etc.
So please, step forward, let's get this job done. God knows, legislators should have plug this gaping hole years ago. Better late than never as they say!

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7 months 2 weeks ago #542002 by spark

xylstra, I am lucky enough not to be in your situation, however, I would expect that in the interests of fairness and "due process", that part of the procedure you want to have made into law, should be the serving of notice on the other parties to an old easement. I think that this is important to prevent someone abusing the system to delete easements that should not be deleted.

What I describe is not about requiring other party's consent, but about giving them a reasonable opportunity to legally object to the deletion of the old easements. I would expect that if any other party could not provide the court with a valid reason for objection, then the deletion of the easement would proceed. However, if the other party provides something that looks like it might be valid reason for objection, then I would expect the matter to have to proceed to some kind of formal adversarial hearing ($$$) if an agreement between parties can not be negotiated instead. Basically, if the government agrees with you that the easements are junk, the onus gets put on any objector to say why the easements should not be deleted.


So, I'd think it would/should go something like this:
1. You make a case to the government that the easements should be deleted because of reasons blah
2. If the government agrees with you that the easements should be deleted, then the government serves notice on the other party(s) to these easements, stating the intention to delete the easements, because of your application and reasons blah.
3. If no other party provides reasons for objection within a reasonable time, then the easement is deleted.
4. If another party provides reasons for objection which the government deems to be unsuitable, then the other party should have a reasonable opportunity to challenge the ruling of their reasons as unsuitable in a formal court process (them vs the Crown, not you?), otherwise, the easements get deleted.
5. If suitable reasons for objection are provided, then you will need to negotiate with the objector, and if this fails to achieve a satisfactory outcome, you will need to proceed to a formal adversarial court hearing (or give up and withdraw your request to delete the easement).

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7 months 2 weeks ago #542008 by max2

Spark's reply is what I thought too when reading your proposal. "You'' may feel an easement is outdated but the person or property it is meant to benefit may not.

For instance our neighbour has 4 easements running across her property for neighbours to access a certain area that contain springs. 2 neighbours do another doesn't, not sure who the 4th one is meant to benefit.

The neighbour who doesn't currently access ''her'' springs bought his property knowing these water easements were in place and knowing he was ''water secure'' from a variety of sources including from our neighbour's property. Just because he doesn't use it, doesn't mean its obsolete for him.

having said that trying to get someone to stick to easement rules is difficult and they can become bloody minded and pig headed and in our experience, its because they have no understanding of what the easement details mean. For my money I would prefer to see an easier process and ability for Councils to enforce easement rules.

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7 months 2 weeks ago #542021 by Hawkspur

Why would Councils want any involvement in easements between properties they do not own?

I cannot imagine that being a popular move.

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7 months 2 weeks ago #542034 by max2

Hawkspur wrote: Why would Councils want any involvement in easements between properties they do not own?

I cannot imagine that being a popular move.


They probably wouldn't (although they seem to involve themselves in other non council stuff very quickly at times) but there has to be a middle ''man'' to deal with stuff like this before committing to Court time and expense for all concerned.

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7 months 2 weeks ago #542058 by xylstra

Hi 'Spark',
Upon receipt of the application I would envisage that the court processor would contact the counter-parties to notify them of the receipt and to give them (say) a fortnight to respond.
This is important: An Easement is NOT a title of property. Any lawyer will tell you that - and by the way, the mis-apprehension of which under-pins a lot of the friction and confrontation that often arises with Easements. Why this is important is that my proposed change will now place the onus on the counter-parties to prove continued use. In the present situation the tail wags the dog, not the other way around (as it should be!). For almost no effort, a vexatious counter-party can 'game' the situation for no other reason than pure malice without having to spend a cent to do so. This is plain wrong and needs to be jumped on. My Bill WILL stop that nonsense.

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7 months 2 weeks ago #542060 by xylstra

Hi Hawkspur,
There is a very good reason why a local council SHOULD be involved with easement issues. They are legislativelty charged with the responsibility of managing water resources which includes groundwater and in turn, this requires the issuance of bore-permits for new wells. An application for a new well should be rejected where the applicant (the dominant party) already has a right to draw water under the terms of a water supply easement even though the well might be dry or rusted out. This contradiction should be resolved by the Council's Water resources department requiring the applicant to firstly extinguish the redundant easement before accepting the application.
Currently., this doesn't happen.
It needs to!
My proposed Bill will fix that.

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7 months 2 weeks ago #542063 by spark

xylstra wrote: Hi 'Spark',
Upon receipt of the application I would envisage that the court processor would contact the counter-parties to notify them of the receipt and to give them (say) a fortnight to respond.[SNIP]

To prevent vexatious applicants abusing this process, I would expect that the court would examine the application to see "if it has merit", and if it does not, then the application goes no further (but the applicant should then still have the right to file a case in the high court as per our current system).
If the court does believe that the application has merit, then I would expect them to serve papers on the other party(s), however, IMHO a fortnight (10 working days?) might not be enough notice for a busy person to arrange to see their (also busy) lawyer, gather the required evidence and provide a suitable response to the court objecting to the application. Also the notice period should not actually start until the papers are actually *served* on the recipient (it'd be a bit unfair to just post the notice out to someone was out of the country at the time :whistle: )

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7 months 2 weeks ago #542065 by Hawkspur

xylstra wrote: Hi Hawkspur,
There is a very good reason why a local council SHOULD be involved with easement issues. They are legislativelty charged with the responsibility of managing water resources which includes groundwater and in turn, this requires the issuance of bore-permits for new wells. An application for a new well should be rejected where the applicant (the dominant party) already has a right to draw water under the terms of a water supply easement even though the well might be dry or rusted out. This contradiction should be resolved by the Council's Water resources department requiring the applicant to firstly extinguish the redundant easement before accepting the application.
Currently., this doesn't happen.
It needs to!
My proposed Bill will fix that.


Managing water resources is the Regional Council's job, not the local Council (unless combined as a Unitary Council)

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7 months 1 week ago #542113 by xylstra

I pretty much surmise that you are either a lawyer or else part of the legal profession (correct me if I'm wrong!). Somewhere along the way you have construed something that isn't. I am the the proposer of this Local Bill NOT the author or writer - that will be handled by qualified professionals who you may be sure will addres all the risks you raise by building in all the necessary legal circuit-breakers.
I recall that many similar hysterical and grossly exaggerated predictions of disaster (eminating mainly from self-interested lawyers) preceded the introduction of enabling legislation to create the Disputes Tribunal. So, where are we today? The Disputes Tribunal achieves what it set out to do: gives cheap and quick acces to complainants who otherwise would have been denied justice due to the outrageous cost barrier originating from the legal profession.
Consequently, the fear and scare -mongers had nowhere else to turn except to pack up their placards and megaphone and submerge back into the shadows.... night still continued to follow day and civilisation did not end.
But what will end with my Local Bill is the legal professions High Court gravy train with one less carriage to haul!

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7 months 1 week ago #542117 by xylstra

I pretty much surmise that you are either a lawyer or else part of the legal profession (correct me if I'm wrong!). Somewhere along the way you have construed something that isn't. I am the the proposer of this Local Bill NOT the author or writer - that will be handled by qualified professionals who you may be sure will addres all the risks you raise by building in all the necessary legal circuit-breakers.
I recall that many similar hysterical and grossly exaggerated predictions of disaster (eminating mainly from self-interested lawyers) preceded the introduction of enabling legislation to create the Disputes Tribunal. So, where are we today? The Disputes Tribunal achieves what it set out to do: gives cheap and quick acces to complainants who otherwise would have been denied justice due to the outrageous cost barrier originating from the legal profession.
Consequently, the fear and scare -mongers had nowhere else to turn except to pack up their placards and megaphone and submerge back into the shadows.... night still continued to follow day and civilisation did not end.
But what will end with my Local Bill is the legal professions High Court gravy train with one less carriage to haul!

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