What is an easement?

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on January 12, 2022 Fact Checked
What is an easement?

When it comes to buying a home or renovating, understanding easements and boundaries can save you from regulation headaches and even a few arguments.

Picture this: your neighbour needs to use your driveway to get to access their block which sits behind you. When you subdivided your block of land, as part of the conveyancing process, your property lawyer informed you of this easement and how it may affect use of the land in the future. This is the type of information that could save a lot of headaches in-future.

In this article, we’ll take a look at:


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    Lender
    Advertised rate Comparison rate* Monthly repayment Rate TypeOffsetRedrawOngoing FeeUpfront FeesLVRLump Sum RepaymentAdditional RepaymentsPre-approval

    VariableMore details
    LIMITED TIME OFFER

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    VariableMore details
    100% FULL OFFSET ACCOUNTNO APPLICATION FEE OR ONGOING FEES

    Low Rate Home Loan - Prime (Principal and Interest) (Owner Occupied) (LVR < 60%)

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    FixedMore details
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    Fixed Home Loan 1 year (Principal and Interest) (LVR < 80%)

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    Fixed Home Loan 1 year (Principal and Interest) (LVR < 80%)

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    • Choose to rate lock for 90 days (fee applies)
    VariableMore details
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    • Refinance loans and variable rates only.
    VariableMore details
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    Rates correct as of January 17, 2022. View disclaimer.


    Understanding property easements

    The legal definition of an easement is the right to cross or otherwise use a portion of someone else’s land. In property terms, this means a person has the right to use your property for a specific purpose even though they are not the land owner.

    An easement may be required to provide other properties access to essential services such as water or electricity.

    Some other uses for easements include:

    • allowing service technicians the right to work on your property to maintain or repair services on the easement such as stormwater, gas and power lines.

    • providing neighbouring properties reciprocal rights such as mutual support of a structure.

    • providing neighbours road access to their property.

    How do I know where an easement is located?

    When purchasing a property, vendors are required to disclose all easements affecting the land they propose to sell in a property contract. Buyers should then ensure they are aware of the impact an easement will have on the land they are about the purchase.

    If you buy a property and then discover an easement, it can put a serious crimp in your extension or renovation plans, requiring a number of chats with both your neighbours and local council. If a structure is built over an easement without permission or where permission is denied, then the owner will be legally required to remove the structure.

    Types of property easements

    Right of carriageway

    Allowing your neighbours to access their property through the use of your driveway is called ‘right of carriageway’. While this passage must not be blocked, it is not the responsibility of the owner of the property to maintain the carriageway.

    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 or under the property, such as power lines or stormwater pipes. If an authority has an easement registered over your land, they have full access to the easement so they can carry out repairs and maintenance.

    In most cases, easement for services are called statutory easements. If you were to build over a statutory easement, you would need to obtain council approval.

    Easement of support

    As mentioned above, this easement provides neighbouring properties reciprocal rights such as mutual support of a structure.

    Easement of light and air

    Building certain walls or structures are prevented under this easement 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.

    Can an easement be altered or removed?

    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 depending on whether it is private or public.

    A private easement is an agreement between neighbours to create a specific easement such as a wall, fence or access, whereas a public easement is an easement created by statutory authority such as local council. 

    An easement can be removed in specific situations including:

    • the easement grantee and the easement grantor reach an agreement.

    • properties are combined into one parcel of land under single ownership.

    • the property isn’t being used and the easement is abandoned.

    • the property is altered, e.g. battle-axe block may acquire alternative direct access if a new street is constructed at its rear.

    Buying a home or renovating one can be enough of a headache before throwing unknown easements into the mix - be sure you know your obligations before you buy or commence work on your property. If in doubt, seek advice through your conveyancer or property lawyer.


    Image by Avi Waxman via Unsplash.

    Disclaimers

    The entire market was not considered in selecting the above products. Rather, a cut-down portion of the market has been considered. Some providers' products may not be available in all states. To be considered, the product and rate must be clearly published on the product provider's web site. Savings.com.au, yourmortgage.com.au, yourinvestmentpropertymag.com.au, and Performance Drive are part of the Savings Media group. In the interests of full disclosure, the Savings Media Group are associated with the Firstmac Group. To read about how Savings Media Group manages potential conflicts of interest, along with how we get paid, please visit the web site links at the bottom of this page.

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    Jacob Cocciolone joined the Savings team in 2021 as a Finance Journalist. Driven by a passion for keeping Australians up to date with the latest financial news and trends, his areas of interest include financial technology, investing, property and motoring.

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