In this article, Elizabeth McDonald, Principal of our Property and Planning team, reviews Stolyar and Another v Towers and Another (2018) 19 BPR 38, 287, in which the Supreme Court was asked to determine whether an easement to park a vehicle on residential property was valid. The easement prevented the owner of the burdened lot from ever parking their own car in or in front of a single garage built on their property. The owner argued that this amounted to joint ownership of the easement land and, therefore, the easement could not be valid.
This case involved two waterfront properties in Rose Bay which shared a common boundary. The property owned by the Towers, which we will refer to as Lot B, had no garage. To overcome this parking challenge, an easement was created in 1990 to benefit Lot B and burden Lot A.
The easement granted the following rights to Lot B (owned by the Towers) over the relevant part of Lot A:
- the rights to stand, park and garage vehicles for an unlimited time, with no express limit on the number (or types) of vehicles which may be parked;
- the right to replace any structure currently on the easement area with a structure of the same size and character;
- the right to keep closed any doors or gates on any garage, but not to lock doors or gates preventing use of or access to the structures;
- the right to enter the servient tenement to effect repairs or replacement of any structure, and to open the soil to the extent necessary.
There was a single garage with no door built on the easement area and space in front of it to park another vehicle. The Towers regularly used both spaces to park their vehicles.
Immediately adjacent and to the west of the single garage is a double garage on Lot A. There is a turntable installed in front of the double garage, but at the time of the hearing the turntable had long since failed to operate and was expensive to repair.
In May 2015, Mrs Stolyar acquired Lot A.
Just 4 months later disputes began to arise over parking. The disputes centred around the space in front of the single garage. Mr Stolyar gave evidence that whenever the Towers parked a vehicle in front of the single garage, he was unable to perform a 'three-point turn' to reverse into or out of the double garage on Mrs Stolyar's property.
An example of the conflict that ensued is an incident which occurred in early November 2015. Mr Stolyar drove his wife’s Mercedes home to collect some forgotten documents for a meeting. As there was a car parked in the area in front of the single garage (belonging to the Tower’s cleaner), and his car was already parked in the double garage, he was unable to turn his wife’s car around to return to the meeting. He left his wife’s car in front of the double garage and caught a taxi instead. The police were later called as the Mercedes was blocking the exit of the cleaner’s car.
The Stolyars claimed that the Towers had no right to park there.
The Towers brought proceedings against the Stolyars for wrongful interference with their rights under the easement. The Stolyars denied the allegations and argued that the easement was invalid as the rights it conferred were so extensive that they amounted to joint occupation and substantially deprived Mrs Stolyar of the proprietorship of her property.
Mrs Stolyar brought a cross-claim seeking a declaration that the easement was not valid and an injunction restraining the Towers from parking there.
At first instance, the Court found in favour of the Towers for reasons outlined below. The Stolyars appealed this decision.
Trial Judge findings
At first instance, the Judge found that the easement was valid. His Honour acknowledged that the rights conferred by the easement meant the Stolyars’ ability to use the single garage and area in front of it were significantly reduced. In fact, the Judge found that the Stolyars had to keep the areas free for use by the Towers even when the Towers were not parked there. Despite this, the Judge found the Stolyars could still derive some use from the area. For example, they could utilise the extra storage space in the single garage, erect an antenna or solar panels on the garage, or extend the size of the garage.
His Honour found the rights of the dominant owner by the easement were not of such magnitude that they substantially deprived the servient owner of its rights of proprietorship or possession in respect of the easement area. The easement, while extensive, did not give exclusive use and enjoyment of the easement area to the dominant servient.
The extent of interference with the Stolyars' rights of ownership of the servient tenement as a whole was not sufficient to warrant a conclusion that the easement was invalid.
The Stoylars had also disputed whether a right to park could be the subject of a valid easement. His Honour found that easements for the parking of cars have been held to be valid grants. This finding was not disputed on appeal.
The Appeal Court held that the Stolyars did not establish that the easement substantially deprived Mrs Stolyar of her rights in the easement area. The Stolyars had asserted that it was impossible to turn a car around in a three-point turn without encroaching on the easement, but the Appeal Court held this was not sufficient. The Stolyars needed to prove it was impossible to turn a car around in the area in front of the double garage or elsewhere without encroaching onto the easement. The Stolyars had not done this.
In the absence of this evidence, the Court found that the rights conferred by the easement therefore did not amount to joint ownership or deprive the Stolyars of their possession or proprietorship of the land affected by the easement.
This case illustrates the high threshold which must be met for the Court to deem that a servient owner is substantially deprived of their rights of proprietorship. The Court is reluctant to deem an easement invalid unless there is evidence that the servient owner can prove that is can derive no use from the area.
Elizabeth McDonald, Principal of the Property and Planning team regularly advises on a comprehensive range of legal matters, including:
- section 88K easements;
- land access and compensation agreements;
- prescriptive easements;
- access licences and leasing arrangements; and
- orders under the Access to Neighbouring Land Act (2000) (NSW).
Click here to read our recent guide on how the Court will determine whether to grant a section 88K easement over land.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice specific to your own situation. Please contact us if you require advice on matters covered by this article.