Property easements in NSW refer to the legal rights granted to individuals or entities allowing them access to or use of another person’s property for specific purposes. These easements can include rights-of-way, drainage, or utility access, and they are governed by specific laws and regulations in New South Wales.
When you enter the real estate market for the first time, you will come across some terms with which you may not be familiar. One of these words is easements. You should be aware of the possibility of an easement or right of way being on the property you have or are purchasing. Generally, easements and right of ways are registered on the certificate of title, and they remain part of the land over the years as it is bought and sold. Some easements, like those for electricity, water and sewerage, are not included on the title. Being aware of an easement is advisable as there will be restrictions on land with an easement.
Meaning of Easement
The term easement and covenant are often confused. An easement or covenant is a right granted over a land area by the owner for another party. What then is the difference?
Easement: In legal terms, easement means the right to cross or use in some way a portion of land that belongs to someone else for a specific purpose. It is essential to be aware of an easement as they can restrict how landowners use their property.
Covenant: This is a provision or a guarantee included in the land deeds. The restriction is put in place by the owner of the land, and it can impact things like the height of the building or size and style etc. The covenant over the land can affect or limit its use, called the covenant’s burden. In some cases, a covenant can provide landowners with some say over what can occur on neighbouring property.
An easement varies from a covenant as it provides a right of access held by someone who is not the landowner, for example, the government, council or telecommunications. This easement means that those holding the rights to the easement have a legal right to use that piece of land even though it is not in their possession. Easements remain with the land title even when the title is transferred, which is called subsisting. When power, water, sewerage, and the like are concerned, an easement gives them a right of entry, and it can also impact the construction of buildings, fencing etc.
There are several reasons why easements are in a particular place. It may mean, for example, that essential services traverse the land, that it has been set aside for road construction or the location of a cemetery. It is vitally important that you make yourself aware of any easements before purchasing land or property as they can impact what you want to do with the land. This information is generally available on the title of the property.
Types of Easement
What different types of easements are there?
a. A carriageway. This easement term is archaic but means a shared driveway. The primary purpose is to ensure that an area without road access does not become landlocked. An easement, in this case, can appear as an encumbrance to the property owner that the easement passes through but a benefit to the person who owns the plot to whom it provides access.
b. Easement of Way. This type of easement is also called a right-of-way easement. It allows people to use a defined strip of land on the property. An example of this is a shared driveway.
c. An Easement of Support. This easement relates to excavations. An area required to be excavated to put in essential services, like drainage or gas, is referred to as an easement of support.
d. A Services Easement. This easement is similar to the easement of support though no excavation is required. It is an area of the property used to deliver essential services to a home or a community. It includes such services as electricity and telephone lines. A service easement also gives people access to the property for repair or maintenance of services.
e. Light and air easements. Light and air easements restrictions are put in place to prevent the construction of a building or wall if it impacts the light and air or view of another party.
f. Artificial waterways and sewerage rights are included. This type of easement focuses on the rights and restrictions for waterways, sewerage and canals.
g. Access road easement. These easements provide access to internal properties etc.
Categories of Easements
You find two classes of easements, the positive easement and the negative.
A positive easement will allow another party to enter the land owner’s property. If an easement is not in place, this would be trespass. A negative easement stops a person from doing something that they would usually do on their property. For example, a negative easement could prevent someone from changing a river’s course or building a house in a certain way.
Disputing An Easement
If you wish to dispute an easement on a property, is this possible? As there are many types of easements and numerous rules governing them, it is worth seeking legal help for advice and to ensure you follow the right procedures. Easement legislation is complex and varies from state to state, so legal advice is invaluable.
There are occasions when you can remove a property easement, and the simplest of these is when both parties involved agree to do so. It is often impossible for an agreement to be reached, and under these conditions, those involved must take the matter to court. The same conditions apply to individuals as they do to developers. Developers are required to apply to the relevant government department if they seek permission to have an easement removed or any changes made to an easement.
The Easement Contract
Two parties, either individuals, groups or companies, can make an easement contract. It requires the landowner to grant permission for the property area to be used for a particular purpose. As long as the parties agree about access to the easement and its use, they can create a contract. This process is the same for both public and private easements. Once a contract is in place, it provides a person, group or company with the right to use the land for a specific purpose, but it does not mean they own the land. The contract needs to be a legal document so, legal advice and support are recommended if you wish to create an easement contract.
If you are buying a property in NSW or throughout Australia, it is wise to determine if any easements exist before you purchase the property. Property owners should disclose all easement in the Contract of Sale of Land. A property lawyer will assist with the conveyancing transaction.
On occasions, you can be asked to provide some of your property for an easement. As long as the request made is reasonable, it is advisable to accept the request.
In NSW, under the Conveyancing Act, section 88K, the courts have the authority to grant an easement over your property if:
a. There is a reasonable necessity for an easement so that the land can be effectively developed.
b. The requested land that will become an easement will benefit the public.
c. The person who owns the land can be adequately compensated for the burden of’ the easement.
d. The developer has made every possible reasonable attempt to acquire the owner’s easement, and this process has not been successful.
Cases in NSW do exist where the court has awarded the easement despite the land owner’s rejection to grant an easement. The court awarded costs against the landowner as their actions were considered unreasonable and not in the public’s interest. It is unwise to unreasonably refuse to give an easement if adequate compensation is offered.
Compensation is given to those who are entitled to receive it. Compensation is discussed in The Conveyancing Act section 88K. For landowners who are asked to agree to the provision of an easement on their property, they should have the easement valued so they can consider the value of the land and what adequate compensation would be.
You can see an example of this in the ABI-K Pty Limited v Frank Shi case, which occurred in the Supreme Court in 2014. In this situation, a significant amount of compensation money was offered to the landowner for an easement for pipes to be placed along one boundary and in the property’s back area. He was offered forty thousand dollars and refused; instead, he demanded two hundred and fifty thousand dollars. The case was taken to court as the parties could not agree. The court considered the easement referring to s88K and awarded the easement. The compensation they awarded was twenty-one thousand five hundred dollars. The landowner was also required to pay the developers’ court costs as they believed that the landowner had been unreasonable in not granting the easement.
Legal assistance is invaluable when you are dealing with property easement issues. A lawyer will be able to answer any questions you have concerning property easements, stormwater easements etc. They will assist in working out a reasonable compensation. A property lawyer will have the answers to all your questions, so seek their guidance.
Understanding the complexity of easements and how they impact a property can be difficult. If you have an easement on your property, it means there is an exclusive right of another person or group, for example, the council or department of roads, to use that part of your property for a specific purpose. Easements are put in place to run services like power or telecommunication, to put in roads or for air space. If you wish to obtain an easement, you can attempt to do so through negotiation or by going to court. Going to court is the more complex of the pathways and seeking legal assistance is advisable.
Frequently Asked Questions
1. What is the express easement?
An express easement is an easement granted and recorded in a legal document, like a deed. It can include plans for a subdivision.
2. What happens if you build over an easement?
There can be quite severe consequences for building over an easement. You can be asked to remove the building and pay the cost of damages from, putting up an unauthorised construction over an easement.
3. Can you get payments for an easement?
You can get compensation for providing an easement, and there are situations where it is possible to gain payment in exchange for a right of way. These payments are not compulsory.
4. How can I find out if there is an easement on my property?
If you live in NSW, you can make contact with the land Registry Services. Another way to find out is to get a title search done. A lawyer can also check this for you.
5. Is it possible to block an easement?
The courts will rule that the owner of a property with an easement on it cannot block or impact the easement’s practical use.