Easements and Owners Corporations
By Phillip Leaman
4 June 2021
Easements can be tricky for landowners let alone for Owners Corporations. There are a number of easements that can affect an Owners Corporation. These include:
- Registered easements which appear on the plan of subdivision which either benefit the Owners Corporation or lot owners and these can include:
- Easements for rights of way,
- Essential services such as water, electricity, sewerage and drainage
- Easements that are acquired through long use (easements by prescription). If someone uses common property (that is not a lot owner or occupier) or if the Owners Corporation use another party’s land, and that use is for a recognised easement use (such as carriageway/right of way/access, sewer, drainage etc) for a period exceeding 20 years then under the common law the claimant might acquire an easement which can be registered on title.
- Implied easements under Section 12 (2) of the Subdivision Act 1988.
Implied easements can be the most confusing for Owners Corporations. An implied easement is created by statute and grants for the benefit of each lot and any common property all easements and rights necessary to provide:
- support, shelter or protection; or
- passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or
- rights of way; or
- full, free and uninterrupted access to and use of light for windows, doors or other openings; or
- maintenance of overhanging eaves
but an easement is only created or capable of providing rights to the lot owner (or the owners corporation as the case may be) if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property.
Some of the common implied easements relate to the installation of air conditioners on common property roofs, installation of service duct work and rights of way.
It is important that before an Owners Corporation refuses works to common property by a lot owner which allows for something that may be allowed pursuant to an implied easement that advice is obtained. In some cases, the works can be opposed because the lot owner is unable to satisfy the test that the works on common property are “necessary”. This is usually because there is another alternative which may not be as cheap or as convenient, but no less possible.
A classic example of this is a lot owner who wants to put their air conditioning condenser on the roof but they have a courtyard which can fit a condenser. In that situation, the Owners Corporation might be able to legitimately refuse the lot owner putting the condenser on the roof as the implied easement does not result as there is no necessity for the easement to be established.
To see how implied easements have been interpreted by VCAT in respect to air conditioners see our blog here.
Need Advice ?
Phillip Leaman is one the leading lawyers in Victoria on easements and can assist you with making or defending a claim or providing advice to an owners corporation on its rights and obligations.
Phillip Leaman, principal of the Owners Corporations practice group of Tisher Liner FC Law and his very experienced team can provide assistance to owners corporations, committees, lot owners and managers in a range of owners corporations legal matters.
We believe Owners Corporations want to maintain peaceful, functional living environments for owners. Our mission is to provide a fresh perspective on resolving legal disputes and to inspire Owners Corporations to achieve outcomes that preserves the value of assets and restores harmony. We are expert Owners Corporations lawyers.
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