Unified Lawyers Dominic Nguyen

Dominic Nguyen

Dominic is one of Sydney's leading property lawyers with over 10 years experience in this area of law. Dominic has outstanding knowledge and extensive experience in family law, conveyancing, buying…
Spread the love

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.

Easement Categories

There are two categories of easements: positive easements and negative easements.

Positive Easement

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).

Negative Easement

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.

Service easements

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.

Implied easement

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.

Express Easement

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.

Easement FAQs

🏡 Who owns an easement?

Despite the restrictions on the estate, the grantor remains the sole owner of the land. They are only deprived of rights partially as the grantee gains limited access and easement rights to the property. The terms of use are comprehensively stated in the easement document.

❔ Where are easements commonly used?

The grantor and grantee agree to make an easement to gain “right of way” to one of the following areas:

• 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?

It is possible that the grantor be paid in exchange for the right of way. However, the amount of payment is not mandatory and is open for negotiation between two parties.

🏡 Can a property owner deny an easement?

Absolutely yes. However, a statutory authority may demand easement, even without the owner’s consent.

❓ Can an easement be removed from the title?

The easement can be removed from the title if the grantor and the grantee mutually decide to do so. The said agreement should be documented by a solicitor or a registered conveyancer and filed in the Office of Land Titles. Alternatively, the easement can be removed by the Court from the title, proven that it is no longer used or needed.

🔎 How to locate an easement?

In most cases, a diagram that describes the distances of the easement area is attached to the title and then lodged in the Office of Land Titles. As a landowner, you can contact the easement holder if you need more relevant information.

For broader easements, you can contact a local surveyor to locate and identify the easement.

📜 Does building approval include easement information?

Building approvals from the council should always consider any easement required by the upcoming area development. Agents and landowners should acknowledge the inclusions of the easement before building or applying for development. This should be done by inspecting their title to the land.

💲 How does an easement affect the value of your property?

The value of your property may be affected, depending on the situation. Easements bring about certain restrictions to the next landowner. On the bright side, if the land in question gives the right to use someone else’s land, it can be more beneficial and thus, may increase its value. If you are planning to purchase a property soon, considering the effects of easement before signing any contract is strongly recommended.

🚫 What are the common restrictions caused by an easement?

Developing any structure or building that prohibits the use of an easement may be forbidden. This is the same reason why properties with easement are not allowed to be fenced off by the grantor. Every landowner is advised to ask about any easement agreement before starting construction or any major renovation into your property. Enquire if there is any documented information to avoid any misunderstanding or confusion.

🏭 Are there any consequences for constructing or renovation over an easement?

The grantor may face unfavorable consequences such as removal of the building or paying damage costs that resulted from unauthorised construction on the land having an easement.

🔨 Who maintains the property that is subjected to easement?

If you’re the grantee, you are generally in charge of maintaining electric cables, water pipes, and others. However, if the easement document does not specifically state this information, maintenance is can be negotiated between the parties involved.

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.

Unified Lawyers Dominic Nguyen

Dominic Nguyen

Dominic is one of Sydney's leading property lawyers with over 10 years experience in this area of law. Dominic has outstanding knowledge and extensive experience in family law, conveyancing, buying and selling of businesses, commercial and retail leasing, building and construction, strata law, easements, opposing development applications and compulsory acquisitions.

“All materials throughout this entire website has been prepared by Unified Lawyers for informational purposes only. All materials throughout this entire website are not legal advice and should not be interpreted as legal advice. We do not guarantee that any of the information on this website is current or correct.

You should seek specialist legal advice or other professional advice about your specific circumstances.
All information on this site is not intended to create, and receipt of it does not constitute a lawyer-client relationship between you and Unified lawyers.

Information on this site is not updated regularly and so may not be up to date.”