An easement allows someone to use a portion of another’s land for a specific purpose without actually owning the land. The easement user is known as the easement holder, and the land over which they have legal rights is known as servient property.
In Australia, easements may be granted for various reasons, including giving access to a neighbouring property, allowing the laying of utility lines, or protecting conservation areas. They can be permanent or temporary and can be established through an agreement between the landowner and the easement holder or via a court order. The type of easement on the land and its duration determine how it affects you and your property. Indeed, some easements may prevent you from using your property as you see fit.
In all cases, property sellers must include any details about easements in the contract of sale; otherwise, potential buyers may be able to back out of the agreement. Furthermore, conveyancers will thoroughly investigate the property to ascertain if there are easements or other restrictions in place before the buyer commits to the purchase.
Types of easement
There are various easements, each having a different impact on the property. Some of the most common types of easements include:
Right-of-way Easement
A right-of-way easement permits a person to cross another’s property by vehicle or on foot to access their own property. Since it requires a private agreement between neighbouring property owners, it falls under a “private” easement. However, it’s usually included in the property title, and a further search can reveal when it was established and what rights it confers on the holder.
Statutory Easement
A statutory easement may be granted for essential utilities such as telephone lines, gas, water, sewerage, or drainage. These are often known as “easements in gross” or “public easements” and are not usually stated in the title, necessitating more extensive searches to unearth relevant information.
Other, less common easements exist, such as a prescriptive easement, granted after a person’s land has been used without their knowledge, consent, or force for twenty years or more. There can also be an implied easement, in which case the easement rights are implied by statute or common law even though they are not formally expressed. These sorts of easements are rare. Indeed, many states and territories do not allow easement creation by prescription. As a general rule, easements need to be registered.
Negative vs. positive easement
Additionally, under Australian law, easements can be positive, providing the holder with the right to use another’s land, or negative, prohibiting the landowner from doing anything on their property. Examples of positive easements include rights of way, rights to maintain or repair a structure, and rights to access utilities and water. Examples of negative easements include a right-to-light easement that prevents your neighbour from building a structure that would block light from reaching your property.
Other negative easements include rights to air quality and rights to prevent noise pollution. Negative easements are less common than positive easements and are often more challenging to set up because they restrict the landowner’s rights.