The Lowdown on Easements
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An easement is a piece of land which has terms attached to which permit its use or access to a party despite that party not being the owner of the land.
Common examples of easements include:
- Cross-easement – where neighbours afford each other mutual rights to use each other’s property equally;
- Right of way – where the owner of a landlocked property is permitted to travel over a specified section of neighbouring land;
- Light and air – where construction is restricted to avoid cutting off a party’s access to light and air;
- Services – where gas, sewer, electrical and telephone lines may be placed on land which has existing property or structures, for use by the owner or multiple parties;
- Support (excavations) – where a service’s excavation is required; and
- Artificial waterways and sewage – where rights and restrictions must be made for waterways, canals, or sewage.
Disputes can arise over easements if a party decides to use land which does not belong to them in a way that was not previously agreed upon or if a party ignores an easement which has been put in place in order to benefit others.
Categories and types of easements
Positive and negative easements exist, with positive easements being the type which grant access to the party requiring the use of or access to the portion of land, and negative easements being the type which restrict the use of the land, typically where another party’s access to air and water may be denied if the negative easement is not created.
Some common types of easements include:
- Private Easements – are used to cross private land under specific circumstances. An example of this is permitting a party to cross over a piece of their neighbour’s land during high tide because their usual path is inaccessible.
- Statutory Easements – typically relate to government-owned or controlled property. These easements don’t tend to be registered on titles and usually protect telephone and power lines and drainage easements. In order to build over a statutory easement, the party would need to seek approval from the relevant council.
- Access Easements – which allow access from public land to private land, usually by first passing across another parcel of private land.
Can an easement be created informally or verbally?
Easements are usually created when one party grants the easement to another. Under some circumstances, the party can also arrange an easement for themselves. If you are seeking to create an easement with a neighbour it is wise to formally establish the easement with the assistance of legal professionals and have it registered in case a dispute arises or the neighbour sells or rents their land to another party.
Can an easement be changed?
Typically, an easement cannot be changed without the express consent of the parties who agreed to its creation. The consent requirement also applies to any parties with an interest in the easement, including any mortgagees on the title the easement is associated with.
To change the terms of an easement, the interested parties would need to first contact any neighbouring property owners and inform them of their plans. All parties would need to consider how the changes would affect each of them before making a decision. An application would then need to be made to the Court to have the change formally recognised.
How Can I Get Rid Of The Easement?
An easement can be removed when the person who was granted the easement and the owner of the land which holds the easement reach an agreement to do so. They would then be required to prepare the relevant documentation and lodge it with the Land Titles Office.
If an agreement cannot be reached but the easement is no longer required, an application for its removal may be made to the Court.
To find out more about easements, get in touch with our team at Cairns Conveyancing Solicitors today.