Understand how an easement affects you

• Why you need to consider easements when buying a property.
• A look at easements, why they matter, and types of easements.
• How to dispute an easement and how to terminate an easement.

If you are buying a property, you will have to consider the possibility that the title contains an easement or easements. Wondering how an easement might affect your transaction?

This guide will explain what an easement is, what to look out for, and explain how to negotiate common problems that can delay sale proceedings.

What is an easement?

The Oxford Dictionary gives a straightforward definition. An easement is “a right to cross or otherwise use someone else’s land for a specified purpose”.

The easement affects a specified area of the land on the property and is registered on the property’s title deed. It is usually shown on the plan of the land along with a brief description, or it is described in more detail in a further document.

Why do easements matter?

Easements are important because they give people other than the property owner the right to benefit from a certain section of the property, and if they use the easement correctly they will not be liable for trespass.

If the easement is a public easement, it may give an authority access to important services, such as water and sewerage, for maintenance and repair.

A key thing to remember about easements is they may affect your building and development plans.

You usually can’t build over or too close to an easement.

You may however, be able to get permission from the body that has authority over the easement (for example an electricity or gas provider) to do so.

If you decide to build too close to or over an easement without permission, you will be legally obliged to remove it.

It’s a good idea to ask your lawyer or conveyancer to find out if there are any easements registered on the title of the property you are looking to buy. This is especially important for property developers or for anyone buying vacant land, because the easement may restrict where on your land you can build. An easement could affect your lender’s valuation of the property, possibly resulting in the need for Lenders Mortgage Insurance.

Different types of easements

Right of way. This means someone can pass through a defined area of land on your property to reach their own property. A common example is a shared driveway giving access to a battle-axe block. In the case of a shared driveway, your neighbour will have access to it at all times and you aren’t allowed to obstruct it in any way.

Easement for services. This type of easement exists so that essential services, such as water, electricity and sewerage, can be conveyed to those who need it. The easement may be above the property (e.g. power lines) or under the property (e.g. water pipes). If an authority (such as a water provider) has an easement registered over your land, they have full access to the easement so they can, for example, carry out repairs and maintenance.

You can’t interfere with their access in any way, such as by building a fence or another structure over the easement.

Easement of “light and air”. This may stop you building certain walls or buildings if they restrict your neighbour’s views. Going ahead and building without checking for an easement of “light and air” could turn out to be a costly exercise as it’s possible you will have to demolish the work.

Cross-easement. This happens where both owners of neighbouring properties have the right to use each other’s property in the same way. An example of this might be a party wall between terrace houses.

Easement of support. This type of easement relates to excavations. It is not unlike an easement for services, but refers to excavation works for the establishment of important services such as telephone lines, electricity lines, gas lines and water pipes.

More easement terminology

As well, there are terms relating to easements which indicate how the easement was created and who benefits from the easement.

The main terms are:

• Private and Public
• Dominant and Servient
• Positive and Negative

When you and your neighbour agree to create an easement, it is known as a private easement.

A public easement is an easement created by statutory authority. An example could be an easement for services (see above).

If you gain benefit from the easement, your parcel of land will be known as the dominant tenement while your neighbour’s parcel will be known as the servient tenement.

For example, if you use your neighbour’s driveway (easement) to get to your house, you have the dominant tenement, as you gain the benefit, while your neighbour suffers the ‘burden’ and his parcel of land is the servient tenement.

These terms "dominant" and "servient" will also come into play when we look at terminating easements.

The name "positive easement" can also be applied when it provides a landowner with a benefit, while for the landowner who is adversely affected it’s called a "negative easement".

How to dispute an easement

You may have purchased a property and are not happy with an easement, especially if you feel it is favouring your neighbour over you.

It’s possible to dispute an easement, but you need to remember that an easement can only be changed or removed when both you and your neighbour agree to it.

The first step when disputing an easement is to seek independent legal advice.

If you can’t reach an agreement with your neighbour, you can take the matter to court to seek a decision.

Terminating an easement

An easement on your property may no longer be required and you may have the opportunity to have it removed from your property’s title.

If you feel the easement is having a negative impact, this could be good news.

As well, removal of the easement may increase your property’s value or appeal.

There are a number of ways in which an easement may be terminated:

• Express release. This is where you and your neighbour both agree to terminate the easement and register your agreement with your land titling authority.
• Consolidation. A circumstance where the dominant and servient tenements are combined into one parcel of land under single ownership.
• Abandonment. If the dominant tenement isn’t being used and its owner plans to abandon the easement, the servient tenement can apply to have the easement extinguished.
• Alteration. This happens where the dominant tenement is altered so that the use of the servient land is no longer required. For example, a battle-axe block may acquire alternative direct access if a new street is constructed at its rear.

Sorted out your easements and ready to buy?

If your mind’s now at ease about easements, and you’re ready to make a move, check out our home loans comparison for lots more advice for home buyers and home loan options.