Towers v Stolyar [2017] NSWSC 526

Towers v Stolyar [2017] NSWSC 526

The rights conferred by the easement, though extensive, do not amount to exclusive possession or joint occupation, and do not substantially deprive the servient owner of proprietorship or possession of the servient tenement or the easement area. The easement is therefore valid and enforceable, as such parking and garaging rights have previously been upheld by Australian courts, and the instrument does not confer undue or exclusive dominion to the dominant owner.

Parties
First Plaintiff/cross Defendant: Barrie Towers; Second Plaintiff/cross Defendant: Celia Towers; First Defendant/cross Claimant: Faina Stolyar; Second Defendant: Ian Stolyar
Jurisdiction
Australia
Judgment Date
04 May 2017
Procedural Posture
Equity Proceedings (declaratory and Injunctive Relief; Cross Claim for Declaration and Injunction) / Principal Judgment
Outcome
Declaration that easement is valid and enforceable; cross-claim dismissed; costs awarded to plaintiffs.
Legal Topics
Easements, Validity of Easements, Construction of Easements, Rights of Parking and Garaging, Extent of Rights Affecting Servient Tenement
Real Property Equity Easements Validity of Easements Construction of Easements Rights of Parking and Garaging Extent of Rights Affecting Servient Tenement

Case Brief

Summary, issues, holding and outcome

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Parties

Barrie Towers

First Plaintiff/cross Defendant

Celia Towers

Second Plaintiff/cross Defendant

Faina Stolyar

First Defendant/cross Claimant

Ian Stolyar

Second Defendant

Procedural Posture

Equity Proceedings (declaratory and Injunctive Relief; Cross Claim for Declaration and Injunction) / Principal Judgment

Legal Issues

  1. 1 Whether the easement for parking and garaging is valid and enforceable
  2. 2 Whether the easement grants rights so extensive as to amount to joint occupation conflicting with the servient owner's proprietorship and possession
  3. 3 Proper construction of the rights conferred by the easement instrument

Ratio Decidendi

The rights conferred by the easement, though extensive, do not amount to exclusive possession or joint occupation, and do not substantially deprive the servient owner of proprietorship or possession of the servient tenement or the easement area. The easement is therefore valid and enforceable, as such parking and garaging rights have previously been upheld by Australian courts, and the instrument does not confer undue or exclusive dominion to the dominant owner.

Court Disposition

Declaration that easement is valid and enforceable; cross-claim dismissed; costs awarded to plaintiffs.

Orders

  • Declaration made that the easement for parking and garaging is valid and enforceable.
  • First defendant's cross-claim is dismissed.