An easement is a portion of land that permits another person to cross over or use it. This section of the land grants someone the right to use it for a specific purpose even if they are not the easement holder. Property buyers or sellers may also see this land section on the map of a property. Some common examples of easements include:

  • A right of way - This allows the owner of a landlocked property to travel over a portion of a neighbouring land. An example of a right of way is a driveway.
  • Cross-easement - This gives neighbours mutual rights to use each other's property in the same way. An example is a party wall between terrace houses.
  • Services - Electric poles and gas, sewer or telephone lines may be placed on land where a property is built over. These services may be used mutually or by the person who owns them.
  • Support (excavations)- This is similar to easements for services but will require a service's excavation.
  • Light and air - This restrict the construction of any structure in favour of another party's access to light and air.
  • Artificial waterways and sewage - This deals with rights and restrictions for waterways, canals, or sewage.

A lot of people try their best to follow property laws in Australia and prevent themselves from trespassing on another property. However, there are people who may also use an easement that doesn't belong to them with or without their knowledge. This may create disputes between a land owner and a citizen and may escalate to legal matters.

How Can the NSW Land Registry Services Help?

Easements are typically, but not always, recorded on the property's title. In NSW, people may register for one in the Land Registry NSW and Property Information in NSW and the Office of Regulatory Services in the ACT. The purpose of registering an easement over land is to show that it exists on the public record.

A person who registers an easement is aware of who can benefit from it and how it will influence their use of the land. Let's use an example. For instance, Dave bought land and decided to build an apartment and his own house. However, he has a car that will need a driveway so he registered a right of way easement that will cross the apartment.

The future apartment tenants cannot build anything over the driveway since the driveway is not registered as an easement. However, Dave may allow them to use the driveway if they also have a car that leads to their own parking space. Let's say Dave also installed another easement where it contained water pipes.

The apartment tenants may still cross that area but are not allowed to plant certain trees that may damage the pipes. People who plan to register easements in their land should seek legal advice from a conveyancing solicitor. This way, they may avoid legal disputes regarding property and trespassing laws.

Categories of Easements

1. Positive

This allows one party (servient tenement) to enter another party's property (dominant tenement). Normally, this is considered trespassing in the absence of an easement. Let's use Dave and his apartment tenants as examples again. For instance, the apartment tenants (servient tenement) are allowed to use Dave's (dominant tenement) driveway even if they have no car.

2. Negative

This prevents one party (servient tenement) from doing something that would normally be considered acceptable in their enjoyment of their estate. The most common negative easements involve water or light. For instance, a negative easement may forbid someone from altering the course of a river or from constructing a structure in a specific manner.

Common Types Of Easements

1. Private Easements

A private easement is used to, for instance, cross a private lake to reach a remote private property. Another instance include private easements used to cross private property during high tide to reach remote beach property on foot. Some jurisdictions may permit the use of this type of easement.

2. Statutory Easements

There are also certain statutory easements that are not registered on titles, such as power or telephone lines, or drainage easements. If people wish to build over a statutory easement, they will need to get consent from their local council.

3. Access Easements

An access easement can provide access from public land, a road or path or a public right of way to a parcel of land. Let's use Gary and Ash as examples. If Gary and Ash own neighbouring parcels of land, Gary's parcel may have easement rights to cross Ash's parcel from public land, road or path or a public right of way.

Easement Creation

A party usually grants an easement to another; however, they can also arrange an easement for themselves. While some parties opt for a verbal agreement, this does not mean it is enough. Hence, courts devised several methods for establishing easements.

1. Implied Easement

Using this method is complicated and will depend on the property's intended use. The intent of the party requesting an easement is also important in the agreement. Implied easements are only recorded in the Registry when the Court determines that a dispute is necessary.

2. Express Easement

This method takes the form of a legal document that is granted or reserved to a person. It is sometimes included in a subdivision plan or an agreement within the owners' organisation.

3. Easement by Necessity

This method will require filing an easement lawsuit in court. If the easement is non-existent, the judge will assess the applicable damage costs for enforcing it in the servient and dominant tenements.

4. Easement by Prescription

This method is also known as an implied easement granted to the grantee after the property has been used continuously for the prescribed duration. The court is the one responsible for ordering an easement by prescription. A prescription easement is very similar to adverse possession (this allows a person to claim ownership of land without paying for it). The only difference is that exclusivity is not required.

Can People Change Easements?

Most of the time, no. An easement is a right that can be created or extinguished through an agreement between the dominant and servient parties. However, it cannot be changed without the consent of both parties who agreed on the easement. This consent requirement applies to all parties with an interest in the easement, including mortgagees on the affected title.

If people want to change the terms of their easement, they would need to contact neighbouring property owners. The concerned party will then inform them of their plans and see how changes will work for both of them. Let's use Dave and his apartment tenants again. If the apartment tenants want to change or remove Dave's driveway, they should contact Dave and see what they can agree on.

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.