Easement on Property: What You Need To Know For Property Development

If you’re in the market for a new home or land for development, there’s a good chance that someone has told you to be aware of easement on property that may be placed on the land. Whether you are purchasing your new home, or purchasing a property for development, being aware of any easements is really important as it may affect what you can and cannot do with your property.

Let’s explore property easements, what they are, where you can find out about them and what to do about them.

What is an Easement on Property?

Essentially, an easement on property allows someone who isn’t the property owner access or use of the land for a definitive purpose. This doesn’t mean you have to let anyone onto your land – it is owned by a specific person or company for a specific purpose.

This might be in the case of a block that has been subdivided where one owner needs to utilise the driveway to access their property, but the driveway is owned by the other owner. Or it may be an access point for emergency services or council utilities.

You do still own the land, but if you were wanting to build or extend over this area, you need consent either from the council or from the person who benefits from the easement.

Types of Property Easements

A search at the Land Titles Office will generally determine whether an easement on property is registered on the land you are purchasing. Aside from having a conveyancer or solicitor to check the contract and searches, it is also recommended to have an architect on board when it comes to purchasing property for development – an architect can explain what impacts of the easement on property may have on your development project. However, before you even get to that stage, you need to have some understanding of the types of property easements that you may see pop up.

Property Easement Categories

There are two main categories of property easements – positive and negative. The positive easement permits one individual or party to enter a property in a way that may normally be thought of as trespassing – for example, your neighbour needing to use your driveway to access their property.

A negative easement is one which stops one individual or party from doing something that would stop the property owner or others from enjoying their property. This is usually related to services and utilities, and may for example, mean that you cannot change the flow of a river or you cannot build over or within a close proximity to the easement.

Common Forms of Easements

There are several easement forms which are commonly seen in the property market.

Right of way easements give someone access to their property through the property of another person – for example, a shared driveway. Without a right of way easement, one party couldn’t access their property.

Service easements are very common and allow utilities companies access to your property to deliver and maintain services. You’ll usually see this easement in relation to water, power, telephone lines, and sewerage.

Easements of light and air aren’t overly common, but you may see these from time to time. Essentially it just means that you would be restricted from building walls or other structures such as additional levels to your home that might block the access to natural light and air flow for another party. To build over this easement, you would need to get consent from anyone who would be affected. This might occur more near precincts in high density areas for high rise development projects, but it is still worth looking out for.

How is an Easement on Property created?

Easement is a written agreement in the plan of subdivision or deed, the Courts created four ways that an easement can be created.

Implied Easement

This easement type can be complicated and is judged based on what the prospective use of the property will be. The intention of the party asking for the easement is also taken into consideration. These easements are only registered when the Court sees that a dispute may arise.

Express Easement

This easement is acknowledged or reserved in a deed or other legal document. It is often included in plan of subdivision or in certificate of title which sets agreement with the property owner.

Easement by Necessity

An easement by necessity is created when a concerned party files a property easement lawsuit. The Court will then gauge any damage costs for the enforcement of the easement if it is proven to not-exist.

Easement by Prescription

This type of easement, often referred to as a prescriptive easement, is an unspoken easement that is designated when a property has been used constantly for the appointed duration, as ordered by the Court.

If you see any of these easement categories pop up during your searches or in a contract, it is important to sit down with your conveyancer or solicitor to ensure that you are across all access rights, and that you are comfortable with these.

Can Easement on Property be removed?

An easement can certainly be removed from the title if both the property owner, and the party with access right agree on its removal. The agreement to remove will need to be documented and witnessed by a solicitor and filed with the Land Titles Office. The easement can also be removed by the Court as long as it is proven that the easement is no longer used or needed.

Wrapping Up

As mentioned earlier, if your property development project requires to build or extend over the easement area, you need consent from the relevant party which may result in extra cost and time to your project.

Here at SQM Architects, we can conduct a feasibility study to determine the best solution that can save you time and money for your project if an easement is present on your land. We have generated many creative designs allowing the buildings to be built around the easements. Find out more and get in touch today for free consultation.