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What is an easement?

It sounds complicated, but ultimately the legal definition of an easement is ‘the right to cross or otherwise use a portion of someone else’s land.’ Common examples of easements include:

  1. A neighbour having the right to use land for a driveway to access their rear block (commonly referred to as a right of way)
  2. Statutory easements for drainage, sewerage and essential services such as gas, water or telecommunication lines
  3. Easements for support where buildings have a shared/common wall; or
  4. Where there has been an encroachment, the parties may have agreed to grant an easement instead of carrying out a boundary realignment.

With any easement, there will be at least one party that benefits from the easement, and at least one party that is burdened by the easement.

How do I know if my property is affected by an easement?

As part of our conveyancing service, we will review the title search and identify if there is a registered easement over the land. If so, we will show you the area on the registered plan and recommend you obtain a copy of the easement instrument to understand the terms and conditions of the easement.

Unfortunately, it is not uncommon for there to be unregistered easements which are not recorded on the title search.  Public utility providers are not required to register easements on title and accordingly, there may in fact be underground infrastructure running through your land that you are not aware of.

If you are looking at buying, building or renovating, we recommend you undertake a free Dial Before You Dig Search. Dial Before You Dig is a national service that connects users involved in all forms of excavation with the infrastructure owners of underground services in that area. You can carry out a Dial Before You Dig search by lodging an online search at www.1100.com.au, using the app or calling 1100.

What is the impact of having an easement?

While the existence of easements is not uncommon, it is important to be aware of their existence, location, and restrictions on the use of the property. For example, you may not be allowed to construct any form of permanent structure or concrete over the easement area. You may also have to grant access for infrastructure services and maintenance – not good news if you plan to put a pool smack bang in an easement area!

Ultimately it is necessary to review the terms of the easement instrument before you purchase or undertake any work on the land.

Am I bound by the easement?

It is important to note that easements run with the land. Even if both sets of owners change, the easement will continue to affect the land.

Can an easement be removed?

An easement can be removed if the grantee and the grantor agree and the appropriate documentation is prepared and lodged with the Land Titles Office. If no agreement is reached and the easement is no longer required, an application may be made to the Court for it to be removed from the title.

If I am selling a property, do I have to disclose easements?

Yes, yes and yes! Every easement or encumbrance (registered or not) must be disclosed in the contract for sale. If you do not and the buyer discovers an easement or encumbrance which affects the property that was not disclosed, the buyer may be able to terminate the contract. Save yourself the heartache and be open with your disclosure.

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