Easements

What is an easement?

You may have heard the term easement thrown around from time to time and be unsure of what it is, why it is needed and when it is needed. This is not uncommon as most average suburban homeowners typically wouldn’t have been subjected to one.

Essentially, an easement is a proprietary intangible property right (implied or written) which can be obtained/granted in order to allow access to or the use of someone else’s land for a particular purpose. A common example is a laneway which allows access through a front block to a back block.

However, just because you may want access to your neighbour’s land for a particular purpose, it does not mean you will automatically be granted a legal right to it. Easements can only be created when a series of requirements are satisfied, including the following:

If the above terms are new to you, you’ll likely be asking “what exactly are dominant and servient tenements?” Simply put, the dominant tenement is the land benefiting from, or having the advantage of, the easement, while the servient tenement is the land granting the benefit, and often having the disadvantage of, the easement. In the example referred to above, the dominant tenement would be the back block and the servient tenement would be the front block.

Although most people may associate easements as being expressed in a positive form (by granting specific rights), they can also be expressed in a negative form (by reserving specific rights).  For example, a corridor of land reserved for utility services (such as gas and water) which prevents a landowner from being able to use that particular corridor as they wish.

The various types of easements

An easement can take many different forms. The most common types are as follows:

An implied easement created by law, as opposed to being created in writing or by agreement. It is often granted because its existence is necessary to achieve just results. For example, the owner of a back block has no access to its land because it is landlocked by the front block. In this situation, the law creates an easement of necessity by granting the owner of the back block a right to use a specified portion of the front block to access its land.

An express easement is formed by agreement or by written direction. For example, a registration on the title of a property granting the owner of a back block the right to utilise a portion of the front block to access its land.

An easement that allows a utility the right to use and access a specific area of another’s property for laying/accessing utilities (such as gas or water). Utility easements are often attached to the title of the property so are passed on when the property is transferred or sold.

An easement that grants a right to limited/specific people to make limited use of the land. For example, the right to draw water from a dam situated within the dominant tenement.

An implied easement acquired by a person other than the landowner by demonstrating that the person has been using the land in a particular manner for at least 20 years without secrecy, permission or force. For example, the owner of a back block using the front block to access the back block without having reached an agreement with the owner of the front block to this effect.

For anyone owning or purchasing a property that carries an easement, it is essential that all rights and obligations are complied with and fully understood, particularly when the easement is favouring one landowner over another. This article is just the tip of the iceberg when it comes to easements!

 

By Danielle Williams (Solicitor) and Mikayla Ginbey (Intern)

If you would like further information in relation to how the above matters may affect you, please contact us on (08) 9321 5451 or by email at danielle@bailiwicklegal.com.au.

For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/

The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

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