Easements

Published 11 May 2016
Louis Andreatta

What is an easement?

Generally, an easement is a right given by one land owner (the burdened land) to an adjoining land owner (the benefited land). The site of the easement over the burdened land is identified in a plan.

The plan identifying the site of the easement must be prepared by a surveyor and lodged at the Land Titles Office for registration on the titles of both the land burdened and the benefited.

The owner of the benefited land does not have an exclusive use of the site of the easement over the burdened land. However, while the owner of the burdened land may continue to use that part of his land which is affected by the easement, such use cannot be a use which is inconsistent with the right of the owner of the benefited land to use the site of the easement.

The easement can be permanent or for a fixed period.

Once granted, an easement enures for the benefit and burden of all successive land owners.

The terms and conditions setting out the rights and responsibilities of the owners of the land burdened and the land benefited will be set out in a document called a Transfer Granting Easement or a document created under section 88B of the Conveyancing Act 1919.

Generally, the owner of the burdened land will require the owner of the benefited land to pay an agreed amount for granting an easement. This amount is capable of being valued by an experienced registered valuer. Once granted, an easement may diminish the value of the burdened land, hence, it is important for the owner of land which may be burdened by an easement to ensure adequate compensation is paid for the granting of the easement.

Type of easements

There are many different types of easements which may be granted. For example:

• Right of carriageway

This is generally granted when the land which is to be benefited by an easement is landlocked. The owner of such land may negotiate with a neighbour (the owner of the burdened land) for a right to pass over a carriageway on the burdened land (for example; a driveway leading to the benefited land). In this case the terms and conditions agreed upon by the land owners will generally spell out their respective rights and responsibilities for maintaining the right of carriageway.

• Right of footway

Perhaps your neighbour is prepared to allow you to traverse his land by foot so you can access your land perhaps even creating a short cut to your land. Such a right would be regulated by way of an easement.

• Easement to drain water

Perhaps the only practicable way for you to reticulate storm water away from your land is by way of pipes passing under your neighbours land. To achieve this, you would need to negotiate with your neighbour to secure an easement over your neighbours land for this purpose.

• Easement to drain sewage

Perhaps the only practicable way for you to reticulate sewage away from your land to the sewerage main is by way of pipes passing under your neighbour's land. You should only do this if you are granted an easement over your neighbour's property for this purpose.

• Easement for repairs

Perhaps you require access to part of your neighbours land to effect repairs to the eves, gutters or walls of your house. An easement or repairs registered over the neighbours land and transferred to you would permit you access over your neighbours property for that purpose.

• Easement for batter

Perhaps it is necessary to support the surface or subsurface of your land by whatever batter or embankment is reasonably necessary on your neighbours land to support the surface or subsurface on your land. Once again, your neighbour may agree to grant you an easement to enter his land and erect a batter or embankment on his land for this purpose. To ensure the batter or embankment is not removed by your neighbour, you should obtain an easement for batter over your neighbour's land.

• Easement for electricity purposes

Perhaps the only way electricity can be delivered from the mains supply to your land is by cables from the mains supply passing over or under your neighbours land to your land. An easement granted to you by your neighbour will permit to install either overhead or underground cables and possibly poles over that part of your neighbours land which is affected by the easement. The terms of such an easement will also ensure access to the site of the easement for the purpose of maintaining the poles and cables. An easement would also prevent the owner of the burdened land from removing the poles and cables and interfering with your electricity supply.

• Easement for overhanging structure or encroaching structure

Perhaps part of the structure on your land overhangs your neighbours land and encroaches on your neighbours land. Rather than remove the overhanging or encroaching structure, your neighbour may be willing to transfer to you an easement over a part of your neighbour's land to permit the overhanging or encroaching structure to remain. Once such an easement is granted, the owner of the burdened land cannot require the overhanging or encroaching structure to be removed.

• Easement for services

Perhaps services such as water, gas electricity and telephone can only be delivered to your property by necessary pipes and cables passing over or under your neighbour's land. An easement over your neighbour's land acquired for this purpose will enable such services to pass over your neighbour's land for your benefit. If you do not have an easement, it may be possible for your neighbour to interrupt the supply of any services passing through your neighbour's land. Prudently, you should ensure supply of services is not interrupted by ensuring that you secure an easement for services over your neighbour's land.

• Generally

Once granted, the owner of the burdened land cannot interfere with the rights granted to the owner of the benefited land and any attempt to do so will be actionable.

An easement which is no longer required or becomes redundant can be readily released or extinguished by both land owners completing and signing the required documents and registering the document at the Land Titles Office.

If it necessary or prudent for you to acquire an easement over your neighbour's land Maclarens Lawyers can advise you and make the appropriate request of your neighbour. Maclarens Lawyers will ensure your interests are properly protected.

Conversely, if you are approached by a neighbour who wishes to acquire an easement over your land, contact Maclarens Lawyers. Maclarens Lawyers can ensure your interests are properly protected and that you are appropriately compensated.

A land owner is not obliged to comply with a neighbours request for the granting of an easement. However, sometimes when a land owner does not agree to grant a neighbour an easement, it may be possible in certain circumstances for the neighbour to seek a court order compelling the land owner to grant toe required easement. Maclarens Lawyers can represent you in such proceedings whether you are seeking such an order or whether you are seeking to resist such an order.

If you have any questions regarding an easement, please do not hesitate to contact Maclarens Lawyers.