Dating back to early Roman law, easements have been used as an important part of property law and at some point or another, it is highly likely that property owners in South Australia will come across an easement in one way or another. An estimated one in ten properties in South Australia are subject to, or benefit from, an easement.
Easements are a property right to use another person's land for a purpose. They have been described as a "privilege without profit", because they grant a right (or privilege) to someone to do something with, or restrict the use of, one person's land for the benefit of their own land.
Any land subject to an easement is known as the "servient tenement", and the land that benefits from that easement is the "dominant tenement".
The existence of an easement, its nature and scope, and its location on the property are typically registered on the Certificate of Title for the affected land. However, this is not always the case. There are certain types of easements, usually reserved for governmental bodies such as SA Water or SA Power Networks (SAPN), that are typically a right granted to those bodies by relevant legislation allowing them to access land where their infrastructure is located. These easements are not registered on title and are known as statutory easements.
For example, an electrical pole on your property or driveway may give rise to a statutory easement over your property for SAPN, and the maintenance and upkeep of that infrastructure would be the responsibility of SAPN. This sort of easement is rarely registered on the Certificate of Title but still exists and can affect one's use and enjoyment of their land.
The most common types of easements are rights of way. These provide the proprietor of the dominant tenement the full and free right and liberty to pass and repass (through the easement) for all purposes (unless restricted under the wording of the easement). Other types of common easements can include;
- Drainage and Sewage Systems;
- Utilities including electricity transmission, gas supply and water systems;
- Party walls – where there is a shared wall between two or more properties, such as joined townhouses. This easement grants the right to not interfere with the shared wall.
What does it mean to have an easement on your land
The owner of the servient tenement cannot do certain things with their land if those things would interfere with the rights that the easement provides to the dominant tenement. Interfering with the easement could include activities such as digging within the easement area or erecting buildings or structures on the land subject to the easement.
For example, an easement for gas supply purposes will prevent any building or digging in the area that the subject gas pipes are located. Councils will typically take into account any easements in their assessment of a proposed development application.
A failure to observe the rights granted under an easement can result in significant costs. This could include the costs of rectifying the infringement, including the removal of any buildings or structures interfering with the easement.
However, easements do not provide an unlimited right to use a person's property. The right granted by an easement is limited to the terms upon which the easement was created. For example, an easement allowing sewage drainpipes underneath another's property would in most cases only give a right to have access to the drainpipe for the specific purpose of repair, maintenance and replacement.
The rights granted under an easement will be expressed one of two ways – short form or long form. A short form easement will have a simple description of the rights being granted, for example "for water supply purposes". The Real Property Act 1886 then sets out the interpretation of that right in more detail, see Schedule 6 of that Act. This method of dealing with the rights granted by an easement allows for a simple, widely accepted and easy to interpret description of said rights.
Alternatively, an easement can be granted with a long form description of the rights being granted and obligations being imposed. When done this way, the parties to the easement can include whatever terms and conditions they see fit when lodging the easement for registration, rather than the brief one line description used with short form easements.
When it comes to selling your property, an easement could increase the value of your property depending on the right the easement grants and the benefit attached to the dominant tenement. Conversely, if your property has an easement over it then this could lower the value of your property for similar reasons.
A useful service for those seeking to do construction, building or digging works on their land is Dial Before You Dig. This service is free and provides land owners with information of whether any underground pipes or other infrastructure is located beneath the surface of their property.
How do I know there is an easement on my land?
Easements may be registered on the Certificate of Title and this is always a good starting point for checking whether your property might be affected. However, in practice this is not always the case. In the event an easement has not been registered on the Certificate of Title, and the land has been acquired in good faith, the easement will generally not pass on to the next registered proprietor of the land, unless some sort of equitable right can be proven.
Extinguishment of an easement
An easement can only be varied or extinguished by obtaining the consent of both the owner of the dominant tenement and the servient tenement. This requirement for consent extends to all parties that have an interest in the easement, which includes, for example, mortgagees on any affected title.
How our team can guide you
In light of the above, it is clear that it is extremely important to understand the scope of an easement and how it may operate in relation to your land. The impact of easements on the rights of the interested parties can be significant.
If you are not sure whether your land is subject to any easements and would like assistance in finding out, or if you are aware of easements affecting your property and would like to better understand your rights and/or obligations, reach out and we can guide you through the process.
Further, we can provide advice in relation to:
- whether an easement is appropriate for you, including the creation and registration of new easements to suit your particular purpose and property objectives;
- strategies to deal with land subject to easements, including plans to extinguish or vary current easements; and
- practical approaches to navigating disputes of over property and easement rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.