Understanding easements on property is an important part of the conveyancing process. An easement can affect how you use your land, what you can build, and your ongoing responsibilities as a property owner.
When selling a property, vendors must disclose registered easements that affect the land. Buyers should carefully review these details before purchasing because an easement may limit the use and development of the property.
Your property lawyer will review the title search, contract and relevant documents to identify any easements affecting the property. They can explain what the easement allows, who benefits from it, and how it may impact your ownership rights.
What is an easement on a property?
An easement is a legal right that allows another person, property owner, or authority to use part of your land for a specific purpose.
An easement does not usually transfer ownership of the land. Instead, it creates certain rights and restrictions that attach to the property title.
Easements are registered on the property title and usually appear on the deposited plan or a separate instrument. These documents identify the affected area of land and explain the purpose of the easement.
Common examples of property easements
Easements can exist for many different reasons. Common examples include:
| Type of easement | Example |
|---|---|
| Right of carriageway (right of way) | Allows a property owner to travel across another person’s land to access their property. This commonly occurs with battle-axe blocks where a driveway crosses another property. |
| Cross-easement | Provides neighbouring properties with reciprocal rights, such as allowing support between adjoining terrace houses or shared structures. |
| Services easement | Allows infrastructure such as electricity, water, sewerage or drainage services to run through or underneath a property. |
Easements may appear on a title search, deposited plan, registered instrument or sewer diagram. In some cases, a title may refer to an easement that benefits another property rather than burdening the land itself. This is known as an appurtenant easement, where one property receives the benefit of the easement.
A property lawyer can review the title documents and explain whether an easement benefits or restricts your property.
Types of easements explained
When reviewing property documents, you may see terms such as private easement, public easement, dominant tenement, servient tenement, positive easement and negative easement.
These terms describe who benefits from the easement and how the easement affects the land.
Private easements
A private easement exists between private landowners. One property receives the benefit of the easement, while another property carries the burden.
The property that benefits from the easement is known as the dominant tenement. The property affected by the easement is known as the servient tenement.
For example, a right of way allows the owner of a landlocked property to cross neighbouring land to access their home. The owner receiving access benefits from the easement, while the neighbouring owner must allow that access.
Positive and negative easements
A positive easement gives someone the right to do something on another person’s land. A right of way is an example because it allows a person to travel across another property.
A negative easement restricts what a property owner can do with their land. For example, a services easement may prevent a homeowner from building over underground sewer pipes or other infrastructure.
Public easements
A public easement is usually created for the benefit of a government authority or service provider.
Examples include easements for electricity, water, drainage or sewerage infrastructure. These easements allow authorities to access the land to install, inspect, repair or maintain their services.
You can find further information about land titles and property interests through NSW Land Registry Services.
How does an easement affect property owners?
An easement can create ongoing rights and responsibilities for property owners. Anyone buying land with an easement should understand how it affects their future use of the property.
| Issue | How an easement may affect you |
|---|---|
| Access rights | A neighbour or authority may have the right to access part of your property. |
| Building restrictions | You may need approval before building over or near an easement area. |
| Maintenance obligations | You may need to allow access for repairs or maintenance of services or structures. |
| Property value | Certain easements may affect the appeal, development potential or value of a property. |
A person who uses an easement correctly and within its legal terms does not commit trespass. The property owner affected by the easement must not interfere with those rights.
For example, if an electricity authority has a registered easement over your land, it may have the right to enter your property to repair or maintain its infrastructure.
An easement may also affect renovations, extensions and development plans. A property owner may need approval before constructing structures over an easement area. If a structure breaches the easement restrictions, the owner may need to remove it.
Can an easement be removed from a property?
In some circumstances, an owner can remove or terminate an easement from the property title. This may be useful where the easement no longer serves a purpose or restricts the property unnecessarily.
The process depends on the circumstances and the type of easement involved.
Ways an easement may end
- Agreement between affected parties: The owners affected by the easement may agree to release it and register the necessary documents.
- Abandonment: In some cases, an easement may end where it has not been used and the benefiting owner intended to abandon it.
- Merger of properties: An easement may end when the dominant and servient land become the same parcel of land.
- Change in circumstances: An easement may become unnecessary where changes to the use of the land make it obsolete.
Why property buyers should check easements before purchasing
A registered easement can significantly affect how you use your property. Buyers should review easements before signing a contract so they understand any restrictions or obligations attached to the land.
A conveyancing lawyer can help identify easements, explain their impact and advise whether they may affect your plans for the property.
Need advice about an easement on your property?
Easements are an important consideration in any property transaction. Whether you are buying, selling or dealing with an existing easement, understanding your rights and responsibilities can help prevent future disputes.
If you need advice about an easement affecting your property, contact our property lawyers on (02) 9818 2888 or email [email protected].