Clients have recently come to see me regarding easements affecting their property. An easement is a right held by one person to use the land, or part of the land, of another person, for a specific reason, or to restrict its use. This right of the easement does not provide ownership of the land, but merely a right to use or restrict that land for the allowed reasons as set out in the easement document. There are many different examples of easements such as: –
– underground pipe drainage;
– open cut drainage;
– overland flow;
– rights of way – access;
– service easements
These easements provide for underground drainage infrastructure, open drains or channels for excess run-off, shared driveways or other access routes for vehicles and persons, gas, sewerage and electricity services etc. Easements are registered on the certificate of title and run with the land in that when the property is sold the easement registered with the land, still applies. Easements are created by either an agreement between property owners or by resumption of the state or local government or another authorised person, or by court order. You should always familiarise yourself with the rights and obligations under the easement document, particularly around restrictions on building on easements and the maintenance and upkeep responsibilities for the easement areas. Easements either benefit your land, referred to as a ‘servient’ easement, or burdens your land called a ‘dominant’ easement. Easements in certain circumstances and with agreement by the parties may be surrendered but their removal is always a complex process. You should always seek independent legal advice as to how easements may impact on your property and to understand your rights and obligations under the easement document.
Brett Moller, Consultant Lawyer – Vandeleur & Todd Solicitors – 3/46 Norman Street, Gordonvale, Qld 4865 – ph 4237 1802
Email: wbm@vandeleurtodd.com.au – Mobile: 0417 609 656