What is an easement on a property? Many people have heard the term “easement” but are unsure what it means or how it affects property ownership.
An easement is a legal right that allows a person, organisation, or another property owner to use part of someone else’s land for a specific purpose. While property ownership usually gives an owner exclusive rights over their land, an easement creates an exception to those rights.
Easements are common in NSW property transactions and can affect how land is used, developed, maintained, and transferred. If you are buying a property with an easement, it is important to understand the rights and restrictions attached to the title before proceeding.
A property lawyer can help you review an easement, explain your obligations, and identify any potential issues before you purchase or sell property. You can learn more about our property conveyancing services.
What are the different types of easements?
There are two main categories of easements:
| Type of easement | How it works | Common examples |
|---|---|---|
| Private easement | Exists between private property owners and gives one property owner rights over another property. | Rights of way, access paths, drainage, electricity, sewerage services. |
| Public easement | Allows government bodies or service providers to access land for public services. | Electricity infrastructure, water pipes, sewerage systems. |
In NSW, easements are generally recorded on the property title. Buyers can review registered easements through a title search conducted through NSW Land Registry Services.
Private easements explained
A private easement exists between two private property owners. The property that receives the benefit is known as the “benefited property”, while the property affected by the easement is known as the “burdened property”.
Common private easements include rights of way and easements for services.
Rights of way
A right of way allows one property owner to travel across another person’s land to access their property.
A common example is a battle-axe block. In this situation, one property sits behind another property and the rear property owner uses a driveway that crosses the front property to access their home.
This type of easement is known as a positive easement because it allows the benefited property owner to do something on another person’s land that would otherwise not be permitted, such as crossing the property.
Easements for services
An easement for services allows essential utilities to pass through another person’s property.
For example, electricity cables, water pipes, or sewerage services for one property may run across or underneath a neighbouring property.
This type of easement may restrict what the burdened property owner can do. For example, an owner may not be able to install a swimming pool or build structures over an area containing underground services.
The owner of the benefited property can use the easement for its intended purpose, while the burdened property owner must not obstruct or interfere with those rights.
What is a cross-easement?
A cross-easement occurs when neighbouring properties both receive a benefit and carry obligations under the easement.
An example is adjoining terrace houses that share structural support from neighbouring walls. Each property owner benefits from the support provided by the other property but must also maintain that support.
If one owner wants to make structural changes, they must ensure those works do not compromise the rights of the neighbouring property owner.
What is a public easement?
A public easement allows a government authority or service provider to use part of private land for a specific purpose.
For example, electricity companies may hold an easement that allows them to install, inspect, repair, and maintain infrastructure on private property.
The property owner cannot interfere with the equipment or prevent authorised access to the easement area.
Public easements can also exist over public land. For example, a property owner may require a right of way across a public reserve to access their home.
How do easements affect property owners?
Easements can affect how you use and develop your property. Before buying land, you should understand:
- where the easement is located;
- who benefits from the easement;
- what activities are permitted within the easement area;
- whether the easement restricts renovations or future development;
- your responsibilities as the property owner.
The NSW Government provides information about property boundaries, land ownership, and related property matters through its official services at NSW Government.
What happens if someone interferes with an easement?
If a property owner interferes with another person’s right to use an easement, legal remedies may be available.
The affected owner may commence Court proceedings seeking damages or an order requiring the interference to stop.
For example, if a person builds a fence across a registered right of way, the benefiting owner may seek an order requiring the obstruction to be removed.
The appropriate legal remedy depends on the type of easement, the registered terms, and the circumstances of the dispute.
Are easements registered on property titles?
Most easements are registered on the titles of both the benefited and burdened properties.
Registration allows future buyers to identify the rights and restrictions affecting the land.
If you are purchasing a property with an easement, your conveyancer or property lawyer should review the title and explain how the easement may affect your ownership.
Frequently asked questions about property easements
Can I remove an easement from my property?
In some circumstances, an easement may be removed or varied, but this usually requires agreement between affected parties or a legal process. The options depend on the type of easement and the circumstances.
Does an easement reduce property value?
An easement may affect a property’s value depending on its location, purpose, and restrictions. A minor drainage easement may have little impact, while a significant access easement may affect development potential.
Should I buy a property with an easement?
Not all easements create problems. Many properties have easements that are common and manageable. However, buyers should understand the terms before purchasing.
Conclusion
An easement gives another person or organisation a legal right to use part of your land for a specific purpose.
Easements may relate to access, utilities, structural support, or public infrastructure. They can create important rights and responsibilities for property owners.
If you are buying, selling, or managing a property affected by an easement, obtaining legal advice can help you understand your rights and avoid future disputes.
If you need advice about property easements, conveyancing, or property transactions, contact us on (02) 9818 2888 or email [email protected].