Your complete guide to easements on property

When you buy real estate for the first time, you sometimes come across a bunch of unfamiliar terms.

What’s conveyancing?  Road-planning

What’s a pre-settlement inspection?

What’s a trust account?

And another term that is probably relatively unusual to new developers or investors is “easement”.

So, in this article we’ll outline what an easement on a property is, so that you’re not left scratching your head if it ever pops up during your next real estate transaction.

What are easements and why are they important for developers?

The legal definition of an easement is “the right to cross or otherwise use a portion of someone else’s land.” 

But what does that mean exactly?

Well, it can mean that you can’t build over that portion or easement of land because it’s almost like sacred ground.

Now that doesn’t mean that your new property is located on an old cemetery or burial ground.

It means that the easement is perhaps land that contains essential services.

That’s why it’s vitally important for small developers to thoroughly understand easements before they purchase a property because it can have an impact on whether the project is still financially viable.

Buyers can usually find the necessary information on the location of any easements on the property title.

What are the different types of easements?

An easement is the right over another person’s land for a specific purpose, but what are those purposes?

One example is a carriageway.

This easement is an old term for what is essentially a shared driveway.

Most commonly these easements prevent the lot without road access from being landlocked.

In most cases, an easement will burden one lot while benefiting another.

If we look at the example of a carriageway, the easement will burden the lot it is over, but benefit the lot that it allows access to.

Examples of different easements include:Property-Investment-Checklist-300x199

  • Right-of-way easement (easement of way) – is where people are allowed to pass through a defined strip of land on the property.
  • An easement for services – is to convey essential services to a community of people. E.g. electrical, gas, water, or telephone lines.
  • Easements of support (pertaining to excavations) – similar to an easement for services but will require excavation works e.g. establishment of drainage pipelines, natural gas lines power, telephone lines.
  • Easements of “light and air” – this may restrict the construction of walls or buildings in favour of another party’s access to light and air (or views in other words).
  • Rights pertaining to artificial waterways and sewerage – this deals with rights and restrictions for waterways, canals or sewerage.

Can I dispute an easement on a property?

When it comes to an easement on property, just as there are many different types, there can be disputes that arise, especially when the easement favours one landowner over the other.

If there are easement disputes, it’s recommended that independent legal advice is sought to ensure that each party’s rights and obligations are clarified.

Legislation regarding easements can vary so it’s important to source legal advice in the relevant state or territory that the property is located.Communication

In Queensland, for example, to enable the rights of an easement to be enforced, it must be registered on the title of the land burdened and the land that benefits from the easement.

It’s also recommended that when a property is being purchased that your conveyancer or lawyer determines whether any easements are registered on the title and, if so, whether there is any impact by the easement on your intended use of the land.

An easement can only be changed or removed when both parties agree to it.

If no agreement can be reached, the matter can be taken to court for a decision.

Developers must also apply to the relevant government department for permission to have an easement removed or changed. 

Disclaimer:

The information provided in this article is general in nature and does not constitute personal financial advice. The information has been prepared without taking into account your personal objectives, financial situation or needs. Before acting on any information you should consider the appropriateness of the information with regard to your objectives, financial situation and needs.

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Andrew Mirams

About

Andrew is a leading finance strategist who holds a Diploma of Financial Planning (Financial Services). With over 27 years of experience in finance, Andrew has been acknowledged by the mortgage industry with multiple awards.Visit www.intuitivefinance.com.au


'Your complete guide to easements on property' have 26 comments

    Avatar

    September 6, 2020 Louise

    Hi Michael,
    We have 2 x drainage easements on our property (vacant land). A large easement at the top and a smaller one that crosses the driveway (which has been in place prior to the area being subdivided – it was the original dairy driveway). The stormwater runoff from the road is not going into the large easement but travelling along the verge and crossing into our property prior to the smaller easement. The water is then travelling down our driveway and across the front street and pooling just before the trainline. It is flushing our driveway, away.
    There has never been any work carried out to install a working easement prior to our owning the property.
    It is confirmed to be a council not watercorp’s easement… Watercorp has been through the mapping with us (they were very helpful). Council have told us that we are very low on their priority list and volunteered no information to date (first contact was 17/7/2020)
    My question is:
    Who is responsible for a drainage pipe to be installed under the driveway?
    Thank you.

    Reply

      Michael Yardney

      September 7, 2020 Michael Yardney

      It’s really hard to tell from your description, but I’m not sure that anybody is responsible for putting the drainage pipe under your driveway.

      Reply

        Avatar

        September 7, 2020 Louise

        So the stormwater flowing from the street, along the verge, crossing onto our property and then along our driveway… all of which is not inside the easement boundaries, how should that be addressed?

        Reply

          Michael Yardney

          September 7, 2020 Michael Yardney

          It should be – but that’s not what an easement is for. Unfortunately the infrastructure in many parts of Australia can’t cope with stormwater run-off.

          Reply

    Avatar

    September 5, 2020 Andrea Chitakis

    Hi, I have a 1445sqm property with a driveway easement on the corner of a four way intersection in a sleepy little coastal town. There is a house at the top of the block (great river views). Council has said that the driveway created in 1983 does not meet Australian Standards and therefore further development on the property would not be supported. It seems the issue is around the amount of traffic entering and leaving the property from a single lane easement driveway onto a four eay intersection (a very low traffic volume intersection). We had thought we could put an art studio/guest accommodation at the bottom of the block but Council’s response seems to indicate a no go. Thoughts please??

    Reply

      Michael Yardney

      September 5, 2020 Michael Yardney

      This is not an easement issue but a town planning issues and even though the size of your land will accommodate more buildings, it seems to be a traffic related issue. A town planner & a traffic engineer may be able to design something that the council will accept

      Reply

    Avatar

    September 1, 2020 HL Koh

    I am interested to buy a 146 sq.m unit in a mixed-residential development comprising in total of about 120 units. The lot title contains the following easement condition i.e. “Easement for access within common areas variable width (limited in stratum) affecting the part(s) shown so burdened in the title diagram”. I find it rather strange for a unit to contain such easement condition. Are you able to shed some light on this matter ? Thanks.

    Reply

      Michael Yardney

      September 1, 2020 Michael Yardney

      Are you looking at this for an investment or for your own home?
      If you looking for an investment please steer clear of large complex like this. Capital growth has been very very poor in large complex and likely to remain that way. As for the easement, if you’re planning to make an important investment decision, best see a solicitor about this specific issue

      Reply

    Avatar

    August 27, 2020 Darren

    There is a stormwater easement running along the front boundary of a property I am looking to purchase. There is an existing concrete crossover over the easement so the land can be accessed. If the easement is only in favour of the the stormwater authority, do I have rights to get my services (water, electricity, gas, etc) from the nature strip, through the easement and then into the section of land I want to develop. Thanks!

    Reply

      Michael Yardney

      August 27, 2020 Michael Yardney

      Darren you would hope so, but you can’t assume that that’s the case. Best to check with the authority before you make any commitment.

      Reply

    Avatar

    July 10, 2020 Grace Falzon

    We are the dominant land and has the easement right over the body corp land to access for utilities. We wants to install and connect water and sewer from the easement land hence some digging. Do we need permission from the body corp to dig the land if it can be done safely?

    Reply

      Michael Yardney

      July 11, 2020 Michael Yardney

      Sorry Grace, I don’t fully understand your question. This isn’t really the right place to get an important answer like this. It’s for general information rather than specific information about your property

      Reply

    Avatar

    July 5, 2020 Emma

    Hey I’m looking at purchasing a lot that it’s only accessible driveway is through flood mapped land. I was going to negotiate with the owner to have an easement put in place through the remaining property so we can get permits to build and have a access out to the road during floods. Any advice on this plan?

    Reply

      Michael Yardney

      July 5, 2020 Michael Yardney

      real simple – don’t buy a secondary property – important to buy the best property you can afford This blog says it all

      Reply

    Avatar

    July 2, 2020 Nader Salib

    I have got water easement 9m wide on my block.

    can I build tennis court on it? also what other idea to use it?

    total easement is 450m

    Reply

      Michael Yardney

      July 2, 2020 Michael Yardney

      Yes a tennis court should be allowed on your easement. Best to check with the authority that has rights over the easement

      Reply

    Avatar

    June 24, 2020 Justin

    I’m looking at buying a 1150m2 property that has an easement on the back 1/3-1/2, about 400m2 of it. It is an oil pipeline that hasn’t been in use for years but the company that owns it doesn’t want to decommission it in case they want to use it again, so I could not use that back part of the property for anything except backyard space, it is turfed/landscaped and level.

    Would you worry about buying this property to live in or is this kind of easement fine?

    Reply

      Michael Yardney

      June 24, 2020 Michael Yardney

      That’s a huge part of your land that you can’t build on, and while it may not affect you it may devalue it for future development. If the house suits you and you get a bigger block at the price of similar surrounding houses on a normal block, it may be worth considering

      Reply

    Avatar

    June 22, 2020 Collin

    thinking of purchasing 30+ hectares of forested land with an easment running through the top of it for $180,000. ill be paid $6000 per annum for the easement. Good investment or not? are there other costs ie special rates i have to consider

    Reply

      Michael Yardney

      June 22, 2020 Michael Yardney

      Forested land has never been a good investment – no cashflow (the easment cash flow is minimal) banks don’t like lending against it and no scarcity – steer clear

      Reply

    Avatar

    June 2, 2020 Carolyn G Cooper

    there is an easement through our property the new owner when we asked to keep the gate closed when he is up said no .. i explained to him we have horses and if one or all where to get out i didnt want them escaping onto his place .but he said when he is there it will be opened when he leaves he will close it what can we do

    Reply

    Avatar

    May 13, 2020 KC

    i have easement area in my property. can i do landscaping , fill it with top soil and put some grasses?

    Reply

    Avatar

    May 11, 2020 Sue

    I did not get my answer by reading this article. When you have an easement on your property e.g. Water drain easement is it possible to build something on top of it?

    Reply

      Michael Yardney

      May 11, 2020 Michael Yardney

      The simple answer is no – but there are always exceptions – you could put a removable shed there

      Reply


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