In Stolyar v Towers [2018] NSWCA 6, the New South Wales Court of Appeal recently decided on an all too common issue experienced by adjoining neighbors; parking a car on a shared piece of property.
Take Away
In this case, the Court found that the Stolyars cannot stop the Towers from using their car space.
How did it all start?
The Stolyars and the Towers are next-door neighbors on the eastern shore of Rose Bay.
Their properties share a boundary. The Towers do not have a garage on their property, whilst the Stolyars have a double garage that they use for their car.
Before the Stolyars bought the property, the previous owner gave the Towers a legal right to park their car in front of a single garage on the property.
Having purchased the property, Mr Stolyar complained about a car (owned by the Towers’ daughter) that was parked in the area in front of the single garage and blocking him from turning his car around to park.
Eventually, and after many arguments and the police being called, the Towers had enough and decided to sue the Stolyars.
The Stolyars in turn sued the Towers arguing that the Towers shouldn’t have been given the right to park their car on the Stolyars’ property in the first place.
What parking right did the Towers have?
The right given to the Towers is to “from time to time and at all times to stand, park and garage vehicles…whether in an enclosed or partly enclosed garage or carport or otherwise on and upon the land”.
This legal right is recorded over the Stolyars’ and the Towers’ properties and it is called an easement.
What the Court decided
At the trial, while the Judge found that the parking right given to the Towers meant that the Stolyars were somewhat restricted from using the single garage and the area in front of it, the Judge said the Stolyars could use the space.
For example, there is space in the single garage for some storage, indicating that the gar-age can be used for parking. The Stolyars can make use of that space. Similarly, the Stolyars can raise the height of the single garage and get more storage space as long as they do not restrict access and use of the garage from the Towers.
The Judge also said that the parking right given to the Towers still allows the Stolyars to use their property to make a three-point turn on their driveway.
Not content with spending tens of thousands of dollars in the first trial, the Stoylars appealed to the New South Wales Court of Appeal and lost stroke 2.
Conclusion
If you share a boundary and have 1 car space and more than 1 car, be friendly with your neigh-bors and check your contract before you buy the property.
If you would like more advice about the above, contact Sam Abraham on (02) 4626 5077 or sabraham@marsdens.net.au.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
