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Ask Leon Your Own Question

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38445
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I have been charged with willful damage to a neighbours residential

Resolved Question:

I have been charged with willful damage to a neighbour's residential water service line running through my property on an easement which is only a right of way easement.

There was a previous line through my property, not on an easement, and I terminated
that line after numerous altercations with the neighbour.

Prior to the termination, the neighbour had asked permission to run a new water line, storm water, and an empty services conduit through the easement.

I refused the request.

Numerous altercations then occurred, and I gave notice of termination of the original water line.

The line was terminated finally after a few attempts.

The neighbour then put a water service through the easement above ground.

I terminated this line and was charged with Willful Damage.

Could there be an effective defence under the Property Law Act Queensland in that
I have the right to remove unauthorised objects from my property?
Submitted: 3 years ago.
Category: Australia Law
Expert:  Leon replied 3 years ago.
Chat Conversation Started
Leon Rizos :

HI Customer

Leon Rizos :

it is a criminal offence that you have committed

Leon Rizos :

the only defence you have is that it was in an easement that it should not have been over.

Leon Rizos :

Before you do anything like this you need to notify the neighbour and advise them to move it and then contact the relevant authorities of the breach by the neighbour

Leon Rizos :

and they will take it onto account.

Leon Rizos :

Have read that you have had altercations with the neighbour over this issue it seems to me that you should not attend court on your own and that you should have a Solicitor represent you.

Leon Rizos :

The history between you may give the court an indication that this was deliberate and maliscious and pre meditated and you will be found guilty.

Leon Rizos :

I hope this is of assistance and if so please click on the accept button

Customer :

What relevent authorityis there to report breach to. Are you familiar with Queensland Property Law?

Leon Rizos :

The authority would be the council

Leon Rizos :

as they approved it

Leon Rizos :

I have some knowledge of QLD property Law

Leon Rizos :

they are all similar Australia widw

Leon Rizos :

wide

Leon Rizos :

Councils are the bodies that require rights of way to be put into place to allow access between properties.

Leon Rizos :

so they are also the ones that make sure that nothing is done that is illegal

Leon Rizos :

that impedes the use of the easement.

Customer :

The council has no authority in this matter. The easement agreement is between the two property owners and has nothing to do with the council. The easement is owned by me and the other party has a written right registered over my property solely for moving from the road to his property. I believe your information about the council is 100% incorrect.

Leon Rizos :

is it registered on the title?

Leon Rizos :

do you have terms and conditions set out when the easement was created?

Leon Rizos :

this is what you need to the rely on

Customer :

It is registered on the title, dated as when created, and sets out terms and conditions.

Leon Rizos :

and the terms and conditions say that nothing is to be placed on the easement

Customer :

The easement document states what can happen on the easement.All other rights ot the owner of the easement are the same as any person has over their property. I cannot walk in and build a house on your house block, claim it is mine, and tell you to leave it alone. You would have the right to remove it, I believe.

Customer :

Leon, I have to go pick my wife up at work. Will be back within half an hour. What country are you in?

Leon Rizos :

in that case you would have to sue the neighbour and seek an order for the illegal structure to be removed

Leon Rizos :

undeer the terms and conditions of the easement which they agreed

Leon Rizos :

you cannot simply take it on yourself to remove it

Leon Rizos :

as it is a private agreement your avenue then is the sue yourself civily

Leon Rizos :

I am in Australia

Customer :

Another train of thought, if something is fixed to a property, it becomes part of that property and a possession of the owner of the property. Is this statement correct? Since the water line is intended to be a permanent fixture on my property eventhough it is not held in place by any fastenings, is it my property or the property of the person who put it there?

Leon Rizos :

fine line

Leon Rizos :

fixtures do go with the land

Leon Rizos :

but if they are connected to another persons land you cannot own them

Leon Rizos :

that is like saying the gas and water pipes are yours because they are on your land

Leon Rizos :

that is not the ase

Leon Rizos :

case

Leon Rizos :

they are fixtures

Leon Rizos :

but not yours

Leon Rizos :

I hope this is of assistance and if so please click on the accept button

Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38445
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Leon and other Australia Law Specialists are ready to help you

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