Easements Explained

When buying real estate, particularly for the first time, you sometimes come across some unfamiliar terms, one of them being ‘easement’; we get frequently asked about easements and what they mean.

The legal definition of an easement is “the right to cross or otherwise use a portion of someone else’s land”.   Sometimes the easement is perhaps land that contains essential services; buyers can usually find the necessary information on the location of any easements on the property title.

Most commonly an easement is in place to prevent a block without road access from being landlocked; so, it is essentially a shared driveway in this type of instance.  There’s usually a benefit to one party of the easement and a burden to another, depending on the scenario.

The below are examples of different types of easements:

  • Right-of-way easement (easement of way) – is where people are allowed to pass through a defined strip of land on the property.
  • An easement for services – is to convey essential services to a community of people, for example: electrical, gas, water, or telephone lines.
  • Easements of support (pertaining to excavations) – similar to an easement for services but will require excavation works, for example: establishment of drainage pipelines, natural gas lines, power, telephone lines.
  • Easements of “light and air” – this may restrict the construction of walls or buildings in favour of another party’s access to light and air (or views in other words).
  • Rights pertaining to artificial waterways and sewerage – this deals with rights and restrictions for waterways, canals, or sewerage.

When it comes to an easement on a 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.

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.

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.