An easement is a portion of land that permits another person to cross over or use it. So, imagine you have a house, but the only way to reach it is through your neighbour’s property. Property buyers or sellers may also see this land section on the map of a property. Here are some other examples of easements include:
- Right-of-way: Imagine a landlocked property – its only access is through a neighbour’s land. A right-of-way easement grants the landlocked owner permission to use a specific path (like a driveway) for access.
- Shared Use: Have you ever heard of “party walls” in townhouses? These are examples of cross-easements, where neighbours share the right to use a structure (like the wall) built on the property line.
- Utility Easements: Those power lines running behind your house? They likely exist thanks to a utility easement. This grants a utility company the right to install and maintain their equipment (poles, lines, pipes) on your property, often for mutual benefit.
- Support Easements: Similar to utility easements, support easements deal with excavations that might affect neighbouring structures. These ensure proper support is provided during construction to avoid damage.
- Light and Air Easements: These easements restrict how someone can build on their property. They ensure that excessive construction doesn’t bloc a neighbour’s access to sunlight and fresh air.
A lot of people try their best to follow property laws in Australia and prevent themselves from trespassing on another property. However, there are people who may also use an easement that doesn’t belong to them with or without their knowledge. This may create disputes between a land owner and a citizen and may escalate to legal matters.
Can the NSW Land Registry Services Help?
Easements are typically, but not always, recorded on the property’s title. In NSW, people may register for one in the Land Registry NSW and Property Information in NSW and the Office of Regulatory Services in the ACT. The purpose of registering an easement over land is to show that it exists on the public record.
A person who registers an easement is aware of who can benefit from it and how it will influence their use of the land. Let’s use an example. For instance, Dave bought land and decided to build an apartment and his own house. However, he has a car that will need a driveway so he registered a right of way easement that will cross the apartment.
The future apartment tenants cannot build anything over the driveway since the driveway is not a valid easement. However, Dave may allow them to use the driveway if they also have a car that leads to their own parking space. Let’s say Dave also installed another easement where it contained water pipes.
The apartment tenants may still cross that area but they can’t plant certain trees that may damage the pipes. People who plan to register easements in their land should seek legal advice from a conveyancing solicitor. This way, they may avoid legal disputes regarding property and trespassing laws.
Are There Categories of Easements?
1. Positive
This allows one party (servient tenement) to enter another party’s property (dominant tenement). Normally, this is considered trespassing in the absence of an easement. Let’s use Dave and his apartment tenants as examples again. For instance, the apartment tenants (servient tenement) can use Dave’s (dominant tenement) driveway even if they have no car.
2. Negative
This prevents one party (servient tenement) from doing something that would normally be considered acceptable in their enjoyment of their estate. The most common negative easements involve water or light. For instance, a negative easement may forbid someone from altering the course of a river or from constructing a structure in a specific manner.
Common Types Of Easements
1. Private Easements
Private easements extend beyond the typical backyard scenarios. Imagine a secluded cabin accessible only via crossing a private lake – a private easement can facilitate this. These agreements grant access rights across someone’s private property to reach another. Similarly, some coastal areas allow access to beachfront property on foot by granting easements across private land during high tide.
2. Statutory Easements
There are also certain statutory easements that are not registered on titles, such as power or telephone lines, or drainage easements. If people wish to build over a statutory easement, they will need to get consent from their local council.
3. Access Easements
An access easement can provide access from public land, a road or path or a public right of way to a parcel of land. Let’s use Gary and Ash as examples. If Gary and Ash own neighbouring parcels of land, Gary’s parcel may have easement rights to cross Ash’s parcel from public land, road or path or a public right of way.
How Do You Create Easements?
A party usually grants an easement to another; however, they can also arrange an easement for themselves. While some parties opt for a verbal agreement, this does not mean it is enough. Hence, courts devised several methods for establishing easements.
1. Implied Easement
This method is complicated and will depend on the property’s intended use. The intent of the party requesting an easement is also important in the agreement. Implied easements are only recorded in the Registry when the Court determines that a dispute is necessary.
2. Express Easement
This method takes the form of a legal document that is granted or reserved to a person. It is sometimes included in a subdivision plan or an agreement within the owners’ organisation.
3. Easement by Necessity
This method will require filing an easement lawsuit in court. If the easement is non-existent, the judge will assess the applicable damage costs for enforcing it in the servient and dominant tenements.
4. Easement by Prescription
This method is also known as an implied easement granted to the grantee after the property has been used continuously for the prescribed duration. The court is the one responsible for ordering an easement by prescription. A prescription easement is very similar to adverse possession (this allows a person to claim ownership of land without paying for it). The only difference is that exclusivity is not required.
Can People Change Easements?
Easements, while granting specific use rights, aren’t set in stone. The good news? Parties involved can create or extinguish them through agreements. However, changing the terms requires the consent of everyone with a stake in the easement, including mortgage holders on the affected property.
If people want to change the terms of their easement, they would need to contact neighbouring property owners. The concerned party will then inform them of their plans and see how changes will work for both of them. Let’s use Dave and his apartment tenants again. If the apartment tenants want to change or remove Dave’s driveway, they should contact Dave and see what they can agree on.
Need Legal Help With Your Easement Matter?
Property owners may have disputes with their neighbours regarding denying or requesting a legal easement. Neighbouring people may accuse others of trespassing or disrespecting their property when they to have an easement agreement with them. But what can these people do if their disputes continue to escalate to legal matters?
JB Solicitors have experienced conveyancing solicitors who can aid in disputes regarding easements. We can ensure that people have the right to build and register an easement in a land. Our team ensures that they are not breaching any state property laws and regulations. We offer a fixed fee for some of our conveyancing services.
Contact a lawyer today for all your legal matters surrounding property and conveyancing laws.
