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What is an Easement?

By 5 January 2014Business
what is an easement

An easement is a right over another persons land for a specific purpose.  One example of a common easement is for carriageway. A carriageway easement is an old term for what is generally a driveway. Most commonly these easements prevent one lot from being landlocked with no access to a road. An easement will always burden one lot and benefit another. In the case of a carriageway, the easement will burden the lot it is over, but benefit the lot that it allows access to. 

Generally, an easement has the following attributes:

  • There is a dominant and a servient party.
  • An easement “accommodates” the dominant party.
  • The dominant and servient parties are different people.

Positive and Negative Easement

An easement can either be positive or negative. This refers to the act required where the easement is constituted.

A positive easement, like an easement for carriageway, permits another to enter the property, which would normally be considered a violation (trespass) or nuisance in the absence of the easement.

A negative easement is a right to receive something (such as easement of light or support) without interference from another party. Many negative easements relate to views, light or water. For example a negative easement may restrict a person from building too high, or from changing the course of a river.

Types of Easements According to Purpose

In general, an easement is granted only for a specific purpose:

  1. 1.    Right-of-way easement (easement of way).

This may refer to where one or more blocks have the right to use a defined strip of land for ingress and egress or the right of carriageway that allows vehicles to pass through the property.

  1. 2.    An easement for services.

This is an easement that allows the use of a defined strip of property to convey essential services to a community of people such as electrical, gas, water, or telephone lines.

  1. Easements of support (pertaining to excavations).

Normally this refers to easement reserved for certain activities that will require excavation works such as the establishment of drainage pipelines, natural gas lines power, telephone lines and other municipal services.

  1. Easements of “light and air”.

These easements may restrict the construction of walls or buildings in favour of another parties access to light and air.

  1. Rights pertaining to artificial waterways and sewerage.

This type of easement deals with rights and restrictions for waterways, canals or sewerage.

Other notable characteristics of Easements

  • Easements must be disclosed when the property burdened with the easement is sold. Easements are usually outlined on the certificate of title to inform buyers of the burden.
  • The use and enjoyment of the servient estate (the estate burdened by the easement) is restricted by the easement. The estate may be prevented from doing a great deal of things that they would otherwise be able to do.
  • An easement will generally only survive whilst its purpose is necessary, though action will be required to remove an easement.
  • A landowner granting the easement may be compensated at the time the easement is created. This can be included in the agreement between the parties. 

Legal Advice

McNamara Law can assist you in the creation, removal or modification of an easement. McNamara Law can also assist in the enforcement of your rights as either a dominant or servient party to an easement.

Contact us on 1300 574 974 or email us at [email protected]