January 5, 2023
What is an easement? Things to know if there’s an easement on your property
When you’re buying property in Queensland, it’s easy to get overwhelmed with the legal and industry jargon. ‘Easement’ is a word you are likely to hear thrown around a lot on your property journey, from your first conversation with the real estate agent, and well into the conveyancing process.
Likewise if you are already a property owner, you are probably curious to know what might show up on a title search of your land and how it could effect your property rights.
Here we’ll break down exactly what an easement is, and some of the different kinds of easements you might encounter. We’ll also discuss some of the commonly used terms to describe easements, and what they mean.
So What Is An Easement?
An easement is a section of land that forms part of a lot, and belongs to one person, but someone else has the right to access it. Examples include the right to cross through the land for access to a rear block, or for drainage, sewerage or other essential services.
There will be one or more party benefitting from the easement, and one or more party that is burdened by the easement. The land with the benefit of the easement is known as the ‘dominant tenement’ and the land burdened by the easement is known as the ‘servient tenement.’
Types Of Easements
There are different kinds of easements, and they all effect property in different ways. Some of the common types of easements we encounter in conveyancing practice include:
‘Right Of Way’ Easements
This is the right to use part of the neighbouring property as a driveway to access the rear block. This type of registered easement will appear on the title.
If an easement like this is on your title, it is normally possible to perform further searches to show exactly what was lodged when the easement was registered, detailing the rights of each party.
Statutory Easements
A statutory easement may be for essential services like telephone lines, water, gas, drainage or sewerage. Also referred to as ‘easements in gross’, they are not usually listed on the title, and more thorough searches are required to identify specific statutory easements burdening the property.
There are other, less common kinds of easements, including a prescriptive easement, where the person’s property has been used for twenty years or more without secrecy, permission or force. An implied easement can also occur, where the easement rights are not expressly granted, but are implied through common law or statute. These types of easements are rare, and it should be noted that in Queensland, easements cannot arise by prescription. As a rule, easements should always be registered.
What Is The Difference Between Public Easements and Private Easements?
You may hear the terms ‘public easement’ or ‘private easement.’ ‘Private easement’ normally refers to an agreement between adjoining property owners, whereas ‘public easement’ refers to a statutory easement or easement in gross.
What Is The Difference Between Positive Easements and Negative Easements?
You might also hear the terms ‘positive easement’ or ‘negative easement.’ A ‘positive easement’ allows something to be done, such an access easement permitting entry into someone else’s land.
A ‘negative easement’ refers to a type of encumbrance that prevents something being done that a land owner would normally be able to do.
How Do I Find Easements On My Property?
Part of a conveyancer’s job is to perform searches on the property you are purchasing to reveal easements or other encumbrances recorded on the title. If, when acting for you in your purchase, we discover an easement on the property title, we will notify you and recommend further investigation if necessary.
Before you buy property, and particularly if you plan on renovating or developing in the future, it is recommended that you run a Dial Before You Dig search. Dial Before You Dig is an organisation that connects people with their industry partners in the delivery of essential services relating to excavation, and can help identify the location of underground infrastructure.
Can I Remove An Easement From My Property?
Easements run with the land, which means they continue even when the property changes hands.
To remove an easement from a property, the grantor and grantee of the easement can agree to do so in writing, and then the relevant forms must be lodged with the Titles Office.
If the parties cannot come to an agreement, the party wishing to remove the easement can seek a remedy by application to Court.
If you wish to remove an easement from your property, you should seek legal advice.
Do Sellers Have to Disclose Easements?
Yes, sellers must disclose easements to prospective buyers in the contract of sale, whether or not they are registered. If sellers do not disclose easements or other encumbrances on the property, the buyer may be able to terminate the contract.
More Questions?
It is critically important that you get legal advice from a property lawyer in relation to easements or other encumbrances on any property you are purchasing, particularly if you are considering property development in the future.
If you have any questions about easements, or any other aspect of conveyancing in Queensland, contact one of our friendly, expert property lawyers today.
The above is not legal advice and is general information only.
