25 Aug Dish from the Commish – Statutory easements in a strata scheme.
Dish from the Commish – Statutory easements in a strata scheme.
The subject of easements, particularly statutory easements, can be a significant issue for bodies corporate.
So what do we mean by a ‘statutory easement’, exactly?
Well, an easement can be thought of as the right to enter or use a section of land for a particular purpose by someone who is not the land owner and so would not normally have that right of entry.
As you’d expect from the above there are several types of easements and they might include things such as giving a right-of-way (people are allowed to pass through a property on a defined strip of land) or the provision of services (e.g. conveying gas, water or electricity).
Then there are some situations where easements are in place according to the Land Title Act 1984 and these are what are known as statutory easements – i.e. the easement is provided for under a statute (piece of legislation).
For bodies corporate, the nature, number and location of statutory easements might be significant and have a big impact on the community titles scheme and its occupiers.
The easement may, for example, be part of an individual lot or on common property and may also give rights of entry to a lot or common property.
Sections 67-70 of the Body Corporate and Community Management Act 1997 provide for the exercise of rights under a statutory easement and, in particular, provide that the exercise of that right can only occur in a way that doesn’t unreasonably interfere with the use or enjoyment of a lot or common property.
The Act also provides for what are known as ancillary rights, which are the additional and related rights that support statutory easement rights. Both the ancillary rights and easement itself may be recorded in the community management statement.
In practical terms and from a body corporate’s perspective, a statutory easement may allow a body corporate to enter a lot to carry out work and this is different to the right of a body corporate under section 163 of the Act to enter a lot or exclusive use area to do an inspection or carry out work.
Equally, a statutory easement may allow a lot owner to enter another lot to carry out work. A practical example of this might be where there is a duplex (two-lot scheme) and the switchboard is located in the backyard of one lot but the safety switch for the second lot needs to be reset. The statutory easement would exist against the first lot and allowing the owner of the second lot to enter the first lot to reset the switch.
The Act provides that an owner or body corporate must give reasonable written notice before they can enter a lot or common property to carry out work under a statutory easement. That said, the Act does not define what is “reasonable” and so therefore there isn’t a definition for how many days’ notice is appropriate or what a “written notice” should include. Additionally, the Act goes on to provide that in an emergency situation – and “emergency” is also not defined – notice is not required.
I can appreciate that this lack of definition might be problematic. I’d suggest that this might be overcome by applying a practical approach. For example, something isn’t an “emergency” simply because we’d wish things to happen more quickly – an emergency is usually something which happens with little or no warning and with very little time to react. In relation to the notice, consider putting in as much detail as you would like if you were the person receiving it.
As you might gather from the above, statutory easements may have significant implications on both an individual and a body corporate’s legal rights and responsibilities, so seeking qualified legal advice might be advisable if there is a query about what statutory easements exist and also prior to exercising a right in relation to those easements.
You can contact the Titles Office – part of the Department of Natural Resources, Mines and Energy – for information about tiles issues generally. Visit https://www.dnrme.qld.gov.au/titles-valuations for more information or call 1300 255 750.
We also have a module, as part of our free online training course, about maintenance which includes reference to statutory easements. The link to that is https://publications.qld.gov.au/dataset/body-corporate-management-training-unit-4-maintenance/resource/f1f3fbc2-9ebb-44d2-9c35-41391749ff45 – although I would, of course, recommend you undertake the entire online training, available at https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/legislation-and-bccm/services/training.
For further information please contact the Information and Community Engagement Unit of my office on 1800 060 119 or visit our website www.qld.gov.au/bodycorporate.
About Commissioner Chris Irons
Chris Irons is the Commissioner for the Body Corporate and Community Management department of the Queensland Government. This department provides a range of information and services for those who live, invest or work in a community titles scheme in Queensland.