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Many people have heard of an easement, but what is it?

In general terms, it is a right to use property belonging to someone else, for some specified purpose, in common with the owner, and possibly others.

Unlike a lease which grants exclusive use of property, easements grant specified rights to specified persons, in common with the owner and possibly others.

There are two types of easements, private and public.

Private easements

A private easement exists between 2 private property owners. Common forms of private easements are rights of way, and easements for services.

A right of way entitles the owner of property A to traverse property B in order to get to property A. An example of this would be a battle-axe block, where property A is situated behind property B and A’s driveway passes across B’s land. An easement of this sort is a positive easement, giving property A a benefit from property B and allowing A’s owner to do something on B’s property that would otherwise be unlawful, and would constitute trespass.

In that same battle-axe block, an easement for services might exist whereby the electricity or sewerage services, for example, for property A have to pass across, or perhaps be buried beneath, property B. This sort of easement is a negative easement, as it restricts B’s owner from doing things he would otherwise be lawfully entitled to do, such as install an in-ground swimming pool where A’s sewerage services are buried.

The owner of property A benefits from these easements, while the owner of property B is burdened by them. B’s owner must not interfere with or obstruct A’s benefit and use of the easements.

Cross-easements

Another example of a private easement is an easement for support.

Such an easement may arise where one building is built against the wall of its neighbouring building, like in a row of adjoining terrace houses. Each adjoining property would benefit from and be burdened by such an easement. As both properties receive a benefit and a burden from the easement, an easement of this sort is called a cross-easement.

The benefit is, of course, the support that property receives from its neighbour’s wall. The burden is that each property is obliged to continue to maintain the support to its neighbour. That obligation would have to be taken into account if one owner was planning structural alterations to their building. He would have to ensure that, in making those alterations, he did not compromise the support provided to the neighbouring property.

Public easement

The electricity or sewerage services in the above battle-axe situation could also be an example of a public easement. That is, the electricity lines could run through both properties A and B, benefitting and burdening both those properties, while also providing power or sewerage to other properties.

With this form of easement, the electricity or sewerage authority has the right to install its equipment on a specified part of both properties A and B, and to enter those properties to repair or maintain that equipment. The owners of properties A and B must not interfere with the equipment or the relevant authority’s right to access the land and their equipment. In addition, those owners generally may not build over that part of their land which is burdened by the authority’s easement.

Easements can also be created over public land, for example where a private property owner needs a right of way across a public reserve in order to access his property.

Remedies

If owner B does interfere with A’s right to use the easement property, there are several legal remedies available to A.

Owner A could commence Court proceedings against B claiming damages or seeking an order that B reinstate A’s rights under the easement. Or owner A might be able to take practical steps to lessen or remove B’s interference with the easement, such as removing a fence that B had built across A’s right of way.

Terms

The easement document should clearly set out the rights of the respective parties – eg who has to pay the costs of maintenance of the road surface in the case of an access easement.

Registration

Easements are usually registered on the title of both the burdened and benefitted properties. As a result of such formal registration of easements, anyone can find information about how the easement affects both the properties.

If you are purchasing a property which has an easement registered on the title, you must make sure you understand precisely the rights and responsibilities created by the easement.

Conclusion

An easement is a right to use someone else’s land for your benefit. Except in the case of a public easement to a utility or a authority statutory one property is usually benefitted and the other property burdened by an easement.

Easements can be public or private, positive or negative. Information about easements affecting a particular property can ordinarily be found from the land titles registration office. If you own or are buying a property affected by an easement, it is vital to understand its terms and what the easement means for you.

If you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email kwaddington@gwlaw.com.au.

 

Ken Waddington

Partner

(07) 5443 4866

kwaddington@gwlaw.com.au

 

If you need help, or have a question get in touch with us today.