As you look at the plans in sales contracts or speak with a conveyancer, you will come across the term “easement” or “legal easement”. Easement covers different rights for parties involved, including the following:
- Right of way (private or public right-of-way)
- Right of support
- Right to water supply, sewer, power, and other relevant utility easements
The easement contract is made between two parties (can be an individual, group, or company) in order to grant permission to use a landowner’s real property for a particular reason. Although the contract is meant to grant rights to access easement, it also includes partially restrict the owner from using the part that’s subjected to the easement. This applies to both public easement and private easement.
An easement provides one person with the right to use another person’s property for a specific purpose or use and does not confer any right of possession. Some common forms of easements include shared driveway, telephone lines, power lines or sewerage. Telephone lines, power lines or sewerage are also often known as statutory easements and are not registered on the title of the Sydney property.
Most easements are included in the title of the property in question. The terms shall remain in case the land is sold to a different owner. However, not all easements can be included in the title. These easements are referred to as “statutory easements” and include telecommunication, sewerage, and electricity easements.
When buying a Sydney property, it is important for you to find out all easements before the exchange of contracts. If you’re selling a Sydney property, it is important for you to disclose all easements and include them in the Contract of Sale of Land. It is best for you to engage a property lawyer to handle the Sydney conveyancing transaction.
There are two categories of easements: positive easements and negative easements.
A positive easement permits one party (servient tenement) to enter the property of another party (dominant tenement). Without the easement, this would normally be considered a trespass or a nuisance. For example, if you need to use the driveway on your neighbour’s property in order to reach your property, you are the servient tenement (aka servient estate) while your neighbour is the dominant tenement (aka dominant estate).
A negative easement stops one party (servient tenement) from doing something that would be considered acceptable in their enjoyment of their estate under normal circumstances. Most common negative easements are related to water or light. For example, a negative easement may prohibit someone from changing the course of a river or from building a structure in a particular way.
Forms of Easements
Some common forms of easements include:
Right of way
A right-of-way easement gives someone the right to access their property through the property of another person. For example, a shared driveway. Without this easement, one party would be landlocked and couldn’t access their property from the road.
This form of easement allows a portion of someone’s property to be used to deliver services, such as telephone lines, power lines, water pipes or sewerage, to another person’s property. These easements also allow access to the Sydney property for repair and maintenance of these services.
Easements of light and air
This form of easement restricts one party from building walls or structures that might block another party’s access to light and air.
If you wish to build over an easement, you will need to get the consent from all affected parties. If the easement is a statutory easement, you will need the consent of the relevant authority.
Creation of Easement
A party usually grants an easement to another; however, it is also possible for them to reserve an easement for themselves. In most instances, a verbal agreement between involved parties is not sufficient. For this reason, the Court came up with multiple ways for easement creation.
This easement is complex and judged based on the planned use of the property. The intention of the party requesting for an easement also plays a good role in the agreement. Implied easements are only recorded in the Registry when the Court sees the need for a dispute.
An easement granted or reserved in a legal document such as a deed is called an express easement. In some cases, it is included in the plan of a subdivision or in an agreement within the owners’ organization.
Easement by Necessity
To obtain this easement, the concerned party will file an easement lawsuit in the Court. The judge will then evaluate the applicable damage costs for enforcing an easement in the servient tenement and the dominant tenement, if such easement is proven non-existent.
Easement by Prescription
Also referred to as prescriptive easement, easement by prescription is simply an implied easement that is given to the grantee when the property has been used continuously for the prescribed duration, as ordered by the Court.
Easement by prescription is almost similar to adverse possession. The only difference is that it does not necessitate exclusivity.
🏡 Who owns an easement?
❔ Where are easements commonly used?
• Electricity supply
• Gas supply
• Access roads
• Walkways or pathways
• Parking space
• Party walls
• Water mains and sewers
💰 Does the property owner get payments or other compensation for an easement?
🏡 Can a property owner deny an easement?
❓ Can an easement be removed from the title?
🔎 How to locate an easement?
For broader easements, you can contact a local surveyor to locate and identify the easement.
📜 Does building approval include easement information?
💲 How does an easement affect the value of your property?
🚫 What are the common restrictions caused by an easement?
🏭 Are there any consequences for constructing or renovation over an easement?
🔨 Who maintains the property that is subjected to easement?
If you have a question about an easement related to your Sydney property, or you wish to create an easement, you should contact a property lawyer who specialises in Sydney conveyancing services.
DISCLAIMER: The content of this publication does not constitute legal advice and is intended only to provide a summary and general overview. We do not guarantee that it is current. You should seek specialist legal advice or other professional advice about your specific circumstances. Your access to this publication is not intended to create nor does it create a solicitor-client relationship between you and Unified Lawyers.