What is an Easement?

An easement is a legal right that attaches to land or a part of land (the Burdened Land) and allows a benefiting party to use the land in a particular manner.

An easement may be granted from the Burdened Land in favour of:

1. Another property, such as allowing a neighbouring property to use part of the Burdened Land for a driveway; or
2. A government entity, such as allowing Unitywater to have sewerage infrastructure on the Burdened Land.

Examples of an Easement

Easements must be for an acceptable purpose. The most common purposes are:

1. Right of way for access (e.g. a landlocked block using part of a neighbour’s land for a driveway);
2. Support of buildings (e.g. where there are buildings with no setback from the neighbouring land boundary);
3. For drainage or sewerage reticulation; or
4. Where there has been an encroachment, and the parties have agreed to grant an easement rather than conduct a boundary realignment.

What does the terminology mean?

There is a lot of legal jargon contained in easements, however the most common terms are:

• ‘benefited lot’ or ‘dominant tenement’ – the land benefiting from the easement.
• ‘burdened lot’ or ‘servient tenement’ – the land which is burdened by an easement.
• ‘easement in gross’ – this is an easement to a government entity or public service provider, such as Unitywater. As it allows the public service provider rights, there is no neighbouring land benefited by the easement, so there is only a ‘burdened lot’.

Using the example of a right of way for access easement – one owner (of the ‘burdened lot’) allows part of their land to be used by another owner (of the ‘benefited lot’) for a driveway.

How do I know if there is an easement registered on my land?

Generally, they all will and should be registered on the Land Titles Register. This means that a title search on your property should identify if there is an easement, and whether it burdens or benefits your lot.

Sale Contracts generally must disclose encumbrances such as easements, but this is not always the case and it is advisable that you always have a contract reviewed in this regard.

Unfortunately, it is also not uncommon for there to be unregistered easements which are not easily identifiable, or circumstances that may allow a neighbour to apply to the Court for an easement over your land (more on this here). This is particularly on older properties where there may already existing services infrastructure in place.

If you think that you are selling, purchasing or owning property with an unregistered easement, we strongly recommend that you obtain legal advice.

Am I required to comply with terms of the easement?

If you a buy a property which is burdened by a registered easement, then you are required to comply with the terms of the easement – even if you were not aware of the easement until after you bought the property.

Commonly, easements restrict what the owner (of the burdened lot) can do with their land.

For example, if there is an easement granted to Council, Urban Utilities or UnityWater to allow the provider to run water storage infrastructure on your land, then you will probably be restricted in the easement terms to not build or concrete over the easement area. This allows the provider to be able to access the infrastructure and conduct maintenance.

If you have any questions regarding the above, please contact our team today.