Have you been looking into property matters? If so, you have come across the term easements and might be wondering about the various types of easements.
Before addressing the topic of the different types of easements, let’s first understand what easements are.
An easement can be defined as the right to use land that is not owned by you. Consider, for instance, there is a portion of land that is owned by a certain person. An easement gives another person the right to use that portion of land for some specific purpose.
Before exploring the categories and types of easements, it is essential to understand certain technical terms that are associated with easements.
The dominant tenement, also known as the dominant estate, is the part of the land that benefits from the easement. On the other hand, the servient tenement, or servient estate is the part of the land that is subject to an easement.
For example, if person X is allowed to walk across the property owned by person Y in order to reach his own property, person X’s property is the dominant estate, and person Y’s property is the servient estate.
The words grantor and grantee are also frequently used when discussing easements. The person granting an easement is the grantor, and the person receiving an easement is the grantee.
To check if you have easements on your property, you can contact NSW Land Registry Services. They will also provide information on the details and types of easements applicable to you.
Categories of Easements
There are generally two categories of easements: positive easements and negative easements. The various types of easements come under either of these two categories.
- A positive easement allows a person (owning the dominant tenement) to do things that would otherwise be considered as trespassing in the absence of an easement.
- Negative easement, on the other hand, restricts the servient tenement from doing things – like building a structure in a specific way, for instance.
Types of Easements
There are various types of easements which include: –
- Easement for Services.
Under this type, a portion of the property can be used for purposes of delivering services. These services can include establishing water pipes or sewage, telephone lines, and power lines, among others.
2. Right of Way Easement.
This type of easement allows a person to access their property through the property of another person. These can include shared driveways, for instance.
3. Easements to Light and Air
This is the right to restrict another person from building any structure that might block access to light, air, or view.
4. Easement of Support
Much like Easement for Services, Easement of Support involves the right to conduct excavation work, like establishing natural gas line power.
5. Easement in Gross
An Easement in Gross is a form of statutory easement. This kind of easement usually benefits service providers, like electricity providers, to provide service to the entire neighbourhood.
On most occasions, a verbal agreement between the grantor and grantee is not sufficient. For that matter, there are various options used by the Court to create easements.
How does the Court Create Easements?
Now that you have an overview of the types of easements, it is also essential to understand how these easements are created.
Under Section 46A of the Real Property Act 1900, some approaches to creating easements have been stated. The different ways through which the Court create easements are as follows: –
- Express Easement:
An easement granted or reserved in a document is called an Express Easement. It can, in some cases, be included in an agreement.
- Implied Easements:
Implied Easements are those that are stated by statute or common law, and are implied, rather than being explicitly stated by a grant or reservation.
- Private Easement:
This kind of easement is made between the owners of two or more parts of the land. This is the right to make use of land by someone other than the owner. The land benefiting from the easement is the dominant one, and the land facing the burden of the easement is the servient one.
- Prescriptive Easement:
This type of easement is acquired through the use of land for a minimum of 20 years. A Prescriptive Easement is a type of Implied Easement. Rights to Air, Light, Drainage and Right of Way can also fall under prescriptive easements.
- Easement by Necessity:
An Easement by Necessity is quite similar to an Implied Easement, in that it is created by the Court. For instance, if someone resides in a landlocked area such that the only way to get to your own property is by crossing over someone else’s property, then an Easement by Necessity will be granted by the Court.
How can solicitors help in this regard?
In matters of easements, simply being aware of the various types of easements is not enough. This is because the process of documenting easements is very complicated. Solicitors will simplify this process for you.
Moreover, solicitors can advise you about Implied and Prescriptive easement rights. They can explain the Rights of Way in a detailed manner for both the dominant and servient tenements. They can also help you understand the impact of easements.
Additionally, legislation around easements can vary from state to state, so it is important to take legal advice on such matters.
In many cases, disputes might arise between property owners. For instance, the involved parties might: –
- misinterpret the terms of the easement,
- argue over who pays for what in terms of the easement, and
- disagree over location, borders, and size of an easement area.
Lawyers can help with litigations in case of disputes, and they can offer their expertise to resolve these disputes. Lawyers can also help with the legal steps that need to be taken to remove easements from the title.
JB Solicitors’ experienced Property Lawyers can help you work around any issues that you are facing with regards to easements. Contact JB Solicitors to speak with lawyers who have a wealth of knowledge on Property Law.
