When purchasing real estate, it is not uncommon to find an existing encumbrance to the property in the form of an easement. However, knowledge and understanding of how easements work are not as widespread.

As such, this article will discuss what easements are and how they can legally affect you.

Overview of Easements

An easement is essentially a property interest which gives a person the right to use land which they do not own, for a specific purpose.

Easements vary greatly in nature, being capable of granting many different types of rights. This includes the right to share another landowner’s driveway and to use a toilet on someone else’s land, amongst others.

The creation and transfer of easements are often done through the execution of a deed or a person’s will. Most importantly, they are also generally required to be registered on the property title to be enforceable. However, this is not the case when it comes to certain statutory easements, which come into effect through government legislation. Examples of statutory easements include the right to install power or telephone lines, or drainage facilities on or underneath your property.

How Easements Can Affect You

An obvious impact of easements on landowners is that they must tolerate others using their property for their own purposes. In addition, landowners who want to build on top of statutory easements generally need to seek permission from their local council before doing so. For all other easements, landowners must secure an agreement from the relevant easement holder.

If you are about to become the landowner of a new property, it is important to conduct a title search before completing any contract of sale. This will enable you to be fully aware of any easements affecting the property, before signing any legally binding documentation.

Extinguishing versus Enforcing Easements

There are a number of ways for landowners to regulate the use of easements. Landowners may elect to send a cease and desist letter in circumstances where the easement holder is acting in a way which the easement does not allow. Landowners may also seek a court injunction when the excessive use of an easement creates an unreasonable burden upon them.

If the landowner wants to modify or wholly or partly extinguish the easement altogether, this may be done upon application to the Supreme Court in New South Wales. Extinguishment will then occur in cases where the Court finds the easement is:

  • Essentially obsolete,
  • Abandoned by the easement holder, or
  • Where its non-existence will not substantially injure the easement holder.

Alternatively, the easement may end upon agreement of both parties and fulfilment of formal requirements for their jurisdiction. For example, those in Queensland need to obtain a court order for the extinguishment to be effective at law.

On the other hand, easement holders can also use similar means to enforce an easement. Indeed, they may issue a cease and desist letter to the landholder upon violation of their rights. Alternatively, they may seek court intervention on the matter.

Conclusion

Easements can significantly limit landowner’s property rights and create legal obligations to others. However, landowners can regulate their use and even extinguish easements in a number of ways, with and without court involvement. Conversely, easement holders can also seek protection of their own interests.

For further information on creating easements or on easements in general, you may wish to speak with an experienced property lawyer or estate planning lawyer.

Have more questions? Contact a LawPath consultant on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace.

 

Jaclyn Ling

Jaclyn is a Legal Intern at LawPath as part of the content team, with a keen interest in how technology can improve accessibility to the legal services industry. She is currently studying a Bachelor of Commerce - Professional Accounting and a Bachelor of Laws at Macquarie University.