Understanding Airspace Trespass and Securing Section 88K Easements

The nuanced complexities of property disputes can surface in many forms, a compelling example being the case of The Owners – Strata Plan 85044 v Murrell. This case demonstrates the intricacies of airspace ownership, privacy rights, and the application of section 88K of the Conveyancing Act 1919. Navigating these challenges is where the team at PDC Law excels, not only in representing your property rights but in achieving resolutions that uphold the delicate balances of urban living.

Delving Into the Intricacies of Airspace Trespass

In the highly sought-after Sydney suburb of Vaucluse, two neighbours found themselves at a legal crossroads over the trespass of airspace. The backdrop of this dispute was a tension between the rights to breath-taking Sydney Harbour views and the neighbouring property’s renovations that threatened to obscure them.

The contention peaked when the neighbouring standalone dwelling sought to upgrade their roof—a move that the adjacent strata scheme felt violated their airspace rights, privacy, and quiet enjoyment. Amidst the ensuing legal battle, the importance of understanding property law and the protections it affords became strikingly apparent.

88K airspace trespass, neighbouring house and apartments.

The Role of Section 88K Easements in Property Discrepancies

The case took a turn when the discussion of easements entered the courtroom, specifically those sanctioned by section 88K of the Conveyancing Act 1919. Here, the legal discourse explored the permissions necessary for repair and maintenance versus improvements—a subtle but significant differentiation.

A decision emerged, granting the neighbouring dwelling a certain degree of easement, yet notably absent was the liberty to improve, which the property enhancements such as a green roofscape would constitute. The court delicately balanced the scales, allowing maintenance but not at the expense of the strata scheme’s rights.

Financial Implications and Legal Victories

The adjudication of the case did not favor either party entirely. The dwelling owners were vested with certain rights through the easement but were subsequently burdened with legal costs associated with their initial trespass and the easement order. This scenario illustrates a fundamental truth: legal triumphs may also come with financial obligations.

The Path Forward: Easements and Resolutions

Years have passed since this notable court decision, and the once-disputed property now proudly features the green roof that sparked such contention. One can’t help but ponder—did time bring compromise, or was further legal navigation required to achieve this addition?

Your Advocates in Property Law: PDC Law

At PDC Law, our expertise extends beyond the courtroom; we understand the emotional and practical implications of property disputes. Whether you’re in need of guidance on airspace rights, easement procurements, or navigating multifaceted property development issues, our team is ready to offer tailored, adept solutions. Maintaining clear skies and clear rights to your views demands a legal partner who is both deeply rooted in property law expertise and ready to ascend to whatever heights your case requires. Reach out to us at PDC Law to protect what’s rightfully yours and ensure your property aspirations aren’t left grounded.

88K, airspace trespass. Photo of real-estate overlooking the harbour.

Figure: realestate.com.au listing accessed 21 February 2024

Lorri Field

Lorri is a director of PDC Law. Lorri combines excellent technical expertise with a common-sense approach to best represent her clients. She is one of few Accredited Specialists in Commercial Litigation in the Illawarra and Shoalhaven. This accreditation is testament to Lorri’s expert knowledge and skill in dealing with commercial disputes. In 2019 Lorri was awarded Regional Lawyer of the Year by Women Lawyers Achievement Awards.

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