Some properties have easements on them, meaning that another party besides the owner has the right to use or access part of it.
Easements are common and are listed on your title, but you may have to do some digging to find out if there is one on your property.
There are different types of easements, and each one may have a different implication for a property owner; some may impact property value.
Doing some research and working with a competent solicitor will help you discover any easements so there are no surprises down the line.
When you buy real estate for the first time, you sometimes come across a bunch of unfamiliar terms.
What's a pre-settlement inspection?
What's a trust account?
And another term that is probably relatively unusual to new developers or investors is "easement".
So, in this article, we'll outline what an easement on a property is so that you're not left scratching your head if it ever pops up during your next real estate transaction.
The legal definition of an easement is the right to cross or otherwise use a portion of someone else’s land.
But what does that mean exactly?
Well, it can mean that you can't build over that portion or easement of land because it's almost like sacred ground.
Now that doesn't mean that your new property is located on an old cemetery or burial ground.
It may mean that a nearby landowner or a utility authority needs access to portions of your land because the easement is land that contains essential services.
They may need to pass through your property to get to their own property or conduct business.
An easement is a legal ability to use someone else's land for a certain purpose.
That's why it's vitally important for small developers to thoroughly understand easements before they purchase a property because it can have an impact on whether the project is still financially viable.
Buyers can usually find the necessary information on the location of any easements on the property title.
An easement is a right over another person's land for a specific purpose, but what are those purposes?
One example is a carriageway.
This easement is an old term for what is essentially a shared driveway.
Most commonly these easements prevent the lot without road access from being landlocked.
In most cases, an easement will burden one lot while benefiting another.
If we look at the example of a carriageway, the easement will burden the lot it is over, but benefit the lot that it allows access to.
Examples of different easements include:
When it comes to an easement on property, just as there are many different types, there can be disputes that arise, especially when the easement favours one landowner over the other.
If there are easement disputes, it's recommended that independent legal advice is sought to ensure that each party's rights and obligations are clarified.
Note: Legislation regarding easements can vary so it's important to source legal advice in the relevant state or territory that the property is located.
In Queensland, for example, to enable the rights of an easement to be enforced, it must be registered on the title of the land burdened and the land that benefits from the easement.
It's also recommended that when a property is being purchased that your conveyancer or lawyer determines whether any easements are registered on the title and, if so, whether there is any impact by the easement on your intended use of the land.
Note: An easement can only be changed or removed when both parties agree to it.
If no agreement can be reached, the matter can be taken to court for a decision.
Developers must also apply to the relevant government department for permission to have an easement removed or changed.
The information provided in this article is general in nature and does not constitute personal financial advice. The information has been prepared without taking into account your personal objectives, financial situation or needs. Before acting on any information you should consider the appropriateness of the information with regard to your objectives, financial situation and needs.
About Andrew Mirams Andrew is a leading finance specialist who holds a Diploma of Financial Planning (Financial Services). With over 32 years of experience in finance, Andrew has been acknowledged by the mortgage industry with multiple awards. Visit IntuitiveFinance.Com.Au
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129 comments LEAVE A COMMENT Brett 2024-08-19 12:20:43Hi, i have a storm water easement running through right side of property, out to council land behind. Our house is not serviced by this easement at all. There appears to be a blockage in easement that backs up and leaks out inspection pit flooding ou . Read full version
john Mclean 2024-07-22 15:53:56Hi I am the chairperson of a body corporate that backs onto a marina. We are standard format (qld) My question is we have retaining wall along the marina side of the property within in our boundary. No issue of the ownership but we also have an eas . Read full version
Eddie Local 2024-07-12 15:00:33There is rear access to my property via a laneway that also services a WA Water Board pump station. There is a boom gate across the entry to the lane way and The Water Board have previously provided a key to the gate. This has allowed continuous ac . Read full version
Would you like to share your thoughts? Brett August 19, 2024Hi, i have a storm water easement running through right side of property, out to council land behind. Our house is not serviced by this easement at all. There appears to be a blockage in easement that backs up and leaks out inspection pit flooding our back yard eveytime it rains. Hills Shire council NSW do not want to know about it. Do we have a case to argue who is responsible for fixing?? Regards,
Brett
Brett it is not your responsibility to fix various authorities assets in your easement. It may not be a council asset but rather a water board assett – see who the easement is made in favour of.
Brett August 19, 2024Thanks Michael, Hills Shire council states they look after storm water and Sydney Water sewer. Sydney water will not touch it unless sewer.
john Mclean July 22, 2024Hi I am the chairperson of a body corporate that backs onto a marina. We are standard format (qld)
My question is we have retaining wall along the marina side of the property within in our boundary. No issue of the ownership but we also have an easement along the length of the wall in favour of the Gold Coast city council for water pipes. In earlier survey plans the easement was in favour of the Body corporate as common property. Unable to find any termination advice of the easement. We have a question on who is responsible for the repairs to the wall. Gold coast council state that Indvidual lot owner are responsible under the standard format. But as we have common property along the same easement is the body corporate now responsible. I guess my question can two parties have benefit of the easement.
Multiple parties can have benefit from an easement – I don’t understand your particular circumstances, but it is possible that while the council has right of access within the easement underground, you are responsible for the wall above the ground. That is very common.
Eddie Local July 12, 2024There is rear access to my property via a laneway that also services a WA Water Board pump station.
There is a boom gate across the entry to the lane way and The Water Board have previously provided a key to the gate.
This has allowed continuous access since I purchased my property in 1985.
Recently The Water Board has requested return on the key and that further access will not be allowed.
Does the laneway qualify as an easement and if so what steps can be taken to formalise the easement?
A lane Way does not constitute an easement and if it belongs to the water board for access to their property, they have got the right to restrict access to others
Eddie July 15, 2024Michael, Thanks for your reply.
My self and two other Neighbours have had continuous access for a number of years, well before the boom gate was installed.
We have invested in back gates and driveways for vehicle and boat storage.
Does this give us any leverage in opposing restriction to access?
