Understanding easements in your property contract

Identifying and understanding easements in a property transaction is an important part of the conveyancing process.

Vendors are required to disclose all easements affecting the land they propose to sell in a property contract, and buyers should ensure they are aware of the impact an easement will have on the land they are about the purchase.

Your property lawyer will identify any easements affecting your proposed purchase and explain their effect on the use of the land.

What is an easement?

An easement is an interest attached to a parcel of land that gives another landowner or a statutory authority a right to use a part of that land for a specified purpose.

The easement is registered on the title of the property and affects a defined area of the land. The easement is generally shown on the plan of the land with a brief description noted or more fully described in a further document (instrument).

Examples of easements include:

  • a right of carriageway (right of way) allowing the owner of landlocked property to access their land by travelling over a portion of neighbouring land – example; a shared driveway used for a battle-axe block;
  • a cross-easement which provides neighbouring properties reciprocal rights to use each other’s property in the same manner – example; for mutual support of a structure such as a party wall between terrace houses;
  • an easement for services such as electricity, water or sewerage – the easement may be over or under the property and may run parallel at the rear or side of a property – example; sewer pipes laid underneath the land by the local water authority or an overhead electricity transmission line.

Easements are recorded on the title deed to a property, noted on the registered plan and incidental instruments, and / or shown on sewerage diagrams.

Legal terminology

When discussing easements, you may hear the terms ‘private and public – dominant and servient – positive and negative’. These terms generally refer to how the easement is created and who benefits from the easement.

A private easement is an easement created between landowners. When such an easement is created one parcel of land will benefit from the easement (the dominant tenement) and the other parcel of land will be burdened by the easement (the servient tenement).

A positive easement provides a landowner with a benefit, such as the right of way described above that allows the landowner to cross over another’s property to access his or her own. That same easement is considered a negative easement by the neighbouring landowner, as allowing the access impacts upon that landowner’s unrestricted use of the land.

A public easement is one created by a statutory authority over one or more parcels of land such as the easement for water services described above. This is also an example of a negative easement as the easement will restrict building over that part of the land (see below).

The effect of an easement

An easement provides certain rights and restrictions and owners of land with registered easements should understand their legal implications.

A party who is lawfully authorised to benefit from an easement, such as the neighbour with a right to use your driveway to access his or her property, and who uses the easement in the prescribed manner, will not be liable for trespass. As the owner of the servient tenement you must not interfere with or restrict these rights.

If an authority has an easement registered over your land, such as an easement for electricity or sewerage services, then the authority will have the right to access your property and to carry out repairs and maintenance on the easement.

An easement will also impact on your building and development plans. Owners are generally prohibited from building over or too close to an easement or must obtain approval from the authority who owns the easement to do so. If a structure is built over an easement without permission or where permission is denied, then the owner will be legally required to remove the structure.

Extinguishing or terminating an easement

In some circumstances, an easement may become redundant or may no longer be required. In such cases, it may be practical and advantageous for an owner to have a registered easement removed from the property’s title. Removal of a negative easement may increase the value and / or appeal of your property.

There are several ways that an easement may be extinguished or terminated.

  • Express release – the parties affected by the easement may agree to terminate the easement and register their agreement with the relevant land titling authority.
  • The owner of the servient tenement may apply to have the easement extinguished on the grounds of ‘abandonment’. This is established by the non-use of the easement and an intention on the part of the owner of the dominant tenement to abandon the easement.
  • In some circumstances, where the dominant and servient tenements are consolidated into a single parcel of land.
  • In circumstances where there is an alteration of use of the dominant land to the effect that use of the easement by the servient land comes to an end or is rendered obsolete.

Conclusion

Understanding easements and their effect on property is a fundamental part of the conveyancing process and buyers, in particular, should ensure they are aware of the impact an easement will have on the land they are about the purchase.

Talk to a specialist

For a confidential, free case assessment, please call us on 02 6621 2481 at Lismore, Ballina on 02 6686 2522 or Byron Bay on 02 6680 8525, email advice@sll.com.au or contact us online.