The question of ‘What is an easement?’ is quite common among those seeking to purchase a property in Australia.
You have never heard of the term ‘easement’ in your life, and yet that property you are thinking of purchasing is affected by one.
So what is an easement?
The purpose of this article is to provide a quick guide on everything you need to know about easements and what you need to be aware of.
What Is An Easement?
An easement is an interest attached to a parcel of land that gives another individual who is not the property owner the right to use that part of the land specified by the easement terms.
The person or land that benefits from the easement is known as the dominant tenement. The person or land affected or burdened by the easement is referred to as the servient tenement.
The trick to remembering the distinction between the two is that you can think of the servient tenement as the land serving the dominant tenement.
An area of land affected by an easement registered on the property title is shown on the land plan with either a brief description of the easement or accompanying documentation describing it more in detail.
What Are Some Examples Of An Easement?
To help better understand the question of ‘what is an easement?’, it is essential to understand the various categories of easements, with examples of each. In broad terms, easements can be categorised as either positive or negative easements.
Positive easements: A positive easement permits someone to enter another’s land in a manner that would generally be considered trespassing.
The most common example of this would be the need to use your neighbour’s driveway to access your property. In this situation, the driveway is the land burdened or the servient tenement.
Negative easements: A negative easement restricts the servient tenement from doing something that would typically be allowed to enjoy their land.
The most common example of this is a restriction to develop on the land in a specific way or all together on a particular part because of issues such as:
- A sewer line running through the land;
- Not being able to build too high as it will block out light; and
- Building in that particular way may change the course of a river
Further Breaking Down The Types Of Easements
Beyond the categorisation of positive and negative easements, we can further break down the types of easements as either:
A right of way or carriageway: This is the typical easement discussed earlier. This form of an easement will permit a landlocked owner to travel over a portion of the neighbours land to access their land.
This type of easement is necessary as it would be impossible to access the home without using a part of another’s land.
A cross-easement: This type of easement provides rights to both parties to use one another’s property in the same manner. The typical situation where a cross-easement will exist is where neighbouring properties share a party wall.
An easement for services: This easement will be either under, over or within the vicinity of the land. Examples include a sewer pipe running below the ground or an electricity transmission line running over the land.
Does An Easement Affect The Value Of My Land?
The answer to this question depends on the practical effect of the easement on the property.
In some situations, an easement will lower the value of your land due to the development restrictions it can bring about.
However, the opposite situation can also be true. An easement may increase land value because it allows for the use of someone else’s land.
Can An Easement Be Removed?
Assuming we are discussing an easement that is possible to be removed, then if the grantor and grantee mutually agree to the removal of the easement, it can be removed.
Such an agreement must be documented by a registered conveyancer or property lawyer to have a legal record of the agreement.
The Court may also remove the easement if you can prove that it is no longer necessary.
Importance of Seeking Legal Advice
When discussing the question of ‘What is an easement?’, it is essential to remember that there are various forms of easements, which can be good or bad depending on the circumstances.
If you would like to obtain advice about any matters concerning an easement on a property, please feel free to contact our team of friendly and experienced property lawyers.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible. Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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