What is an Easement?
An Easement is a right that
- gives others the eligibility to cross over；or
- use part of your land for a specific purpose.
If a registered easement exists on the property you are purchasing then you will find it listed on the ‘Title of the property‘ as an encumbrance.
Common Types of Easements
There are many different types of easements including the below:
- The right of way (right of access) –
- This right entitles your neighbours to pass over your land to access their home.
- An easement for services –
- That means electrical, water or telephone lines etc. which convey essential services to the people in the surrounding area of the property may pass underground the land.
- In this situation it may unlawful if you plan to demolish and rebuild your dream house or build additional structure on the land. You will need to check the location of the easement first as you are unable to build over easements.
- An easement of support –
- This kind of easement is in relation to a shared wall between properties known as a “party wall” or “proposed party wall”.
- Easements of light and air –
- This is a restriction on the height of walls or buildings so that another party may get access to light and air.
Disclosing an Easement on your property?
You must disclose the existence of any easement over your land when selling your property. Failing to do so may mean the buyer is entitled to terminate the contract.
How can I get rid of the Easement?
An easement can only be removed in the following situation when
- the grantee (person who is granted the easement); and
- the grantor (owner of the land) reach an agreement; and
- the relevant documentation can be appropriately prepared; and
- lodged with the Land Titles Office.
If no agreement is reached and the easement is no longer required, an application may be made to the Court for it to be removed from the title under section 181 of the Property Law Act 1974 (Qld).
Conclusion
To summarise, it is important to be aware of the existence of an easement on your property. What can you do?
When
- you notice there is an easement, or
- your solicitor advises you there is an easement on the property you are looking to purchase,
then we would normally recommend you undertake a search of the easement to determine how it will affect you before entering into a legally binding contract. You should also undertake a survey plan search to determine the location and size of the easement.
If you require assistance with any issue in regards to an easement over a property in Queensland then please contact the property team at NB Lawyers for more information.
Written by
Kayleigh Swift, Associate
NB Lawyers – Lawyers for Employers
About the author
Kayleigh Swift is an associate in our Commercial and Property team who assists with Employment Law matters. With a high level of experience in commercial and retail leasing, voluntary and involuntary purchase and sale acquisitions, property development and employee relations, Kayleigh provides practical advice to ensure smooth business transactions.