You Can Park on our Common Property, But we Can’t

Brydall v The Owners of Strata Plan 66794 [2009] NSWSC 819

Quick Read

This 2009 NSW Supreme Court decision is about a parking easement [a registered right over land] over part of a Girraween strata building’s common property and whether the parking rights were exclusive to the adjoining owner or shared with the strata building occupiers. So, the primary issue was interpreting the easement wording and applying it to the circumstances at the two properties. After doing that and referring to other relevant cases, the NSW Supreme Court decided that the applicable ‘proportionality’ principle and the easement wording were in terms that excluded shared use so that the parking rights were exclusive. The decision clarifies the principles Courts will apply when considering easements and confirms that the wording of easements will be strictly applied.

Implications

Whether or not a parking easement is exclusive depends on the facts and circumstances applying to it as well as the wording.
The ‘proportionality test’ described in Weigall v Toman applies.
Proportionality involves balancing the importance or significance of the easement site to the whole land.
Convenience to either of the affected landowners isn’t relevant.
The impact of the easement on the use of the whole of the affected land is relevant to exclusivity.

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Full Report & Case Details

This decision by the NSW Supreme Court involves a parking easement [a registered right over land] over common property in a commercial strata building at Girraween, NSW.

Part of the common property carpark in this strata building was affected by a parking easement in favour of the adjoining owner for parking worded as follows:

‘full and free right for every person who is at any time entitled to an estate or interest in possession in the lot benefited or any part thereof ... and every person authorised by such person to park motor cars, motor vehicles, motor carriages and/or trailers on part of the lot burdened, but only within the site of this easement’.

The parking easement site was small [less than 15% of the land], in the northern corner of the common property, one of many parking spaces and did not interfere with the use of any other parts of the building or the common property.

A dispute arose between the strata building and the adjoining owner over the parking easement about whether the parking rights were exclusive to the neighbour only or shared with the strata building occupiers.

The primary issue was about the interpretation and application of the easement terms to the circumstances of the two properties.

The adjoining owner argued that the easement terms plainly made the parking rights exclusive. The strata building argued they did not and, even if they did, it had implied rights to park there when the adjoining owner wasn’t.

So, the NSW Supreme Court considered the easement and the decisions in The Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Limited [2008] WASCA 180, Weigall v Toman [2008] 1 Qd R 192 and Berryman v Sonnenschein [2008] NSWSC 213, concluding that.

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Keywords

#NSW #NSWCourtofAppeal #easements #parking #s88B #2009