Identifying and understanding easements during a property transaction is an important part of the conveyancing process.
Vendors must disclose all easements affecting the land they propose to sell in a property contract. Buyers should ensure they understand the impact an easement will have on the land they are about to purchase.
Your property lawyer will identify any easements affecting your proposed purchase and explain how they affect 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 the right to use part of that land for a specified purpose.
The easement is registered on the property’s title and affects a defined area of the land. It generally appears on the plan of the land with a brief description. A separate document (instrument) may provide a more detailed description.
Examples of easements include:
- A right of carriageway (right of way) allowing the owner of a landlocked property to access their land by travelling over part of neighbouring land. For example, a shared driveway used for a battle-axe block.
- A cross-easement providing neighbouring properties with reciprocal rights to use each other’s property in the same manner. For example, for the 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 run over or under the property and may extend along the rear or side of the land. For example, sewer pipes installed beneath the land by the local water authority or an overhead electricity transmission line.
Property title deeds record easements. They also appear on the registered plan, incidental instruments and, where relevant, sewerage diagrams.
Legal terminology
When discussing easements, you may hear the terms ‘private and public’, ‘dominant and servient’, and ‘positive and negative’. These terms generally describe how the easement is created and who benefits from it.
Private easements
A private easement is created between landowners. One parcel of land benefits from the easement (the dominant tenement). The other parcel carries the burden of the easement (the servient tenement).
Positive and negative easements
A positive easement gives a landowner a benefit. An example is a right of way that allows the landowner to cross another person’s property to access their own land.
That same easement is considered a negative easement for the neighbouring landowner because it limits their unrestricted use of the land.
Public easements
A public easement is created by a statutory authority over one or more parcels of land. An easement for water services is a common example. This is also a negative easement because it may restrict building over the affected part of the land.
The effect of an easement
An easement creates certain rights and restrictions. Landowners with registered easements should understand the legal implications.
A person who is lawfully authorised to benefit from an easement may use it in the prescribed manner. For example, your neighbour may use a shared driveway to access their property. In doing so, they are not trespassing. As the owner of the servient tenement, you must not interfere with or restrict these rights.
If a statutory authority has registered an easement over your land for electricity or sewerage services, it has the right to enter your property. The authority may carry out repairs and maintenance within the easement area.
An easement may also affect your building or development plans. Owners are generally prohibited from building over an easement or too close to it. Alternatively, they must obtain approval from the authority that benefits from the easement. If an owner builds over an easement without approval, or approval is refused, the law may require the owner to remove the structure.
Conclusion
Understanding easements and their effect on property is a fundamental part of the conveyancing process. Buyers, in particular, should understand how an easement may affect the land they are about to purchase.
This is general information only. You should obtain professional advice that is relevant to your circumstances and the property in question.
If you or someone you know would like more information or needs help or advice, please contact us on 07 5576 9999 or email [email protected].
