What is an easement?

An easement is a right of someone who is not the owner of land to use that land in a certain way. For example, there may be an easement over land for a neighbour to lay drainage pipes on across the property. A right of way is a type of easement, giving the holder of the easement the right to travel across that land, even though they do not own it.

How is an easement created? 

When land is subdivided into a number of different lots, it is common to create easements, including rights of way, over some of the lots, giving rights to the owners of other lots. For example, the subdivision may involve giving an entitlement to one lot to gain access to their property by passing through part of another lot.

An easement, including a right of way, can always be created by agreement between the land owners concerned.

If the owner of land has a very good reason for needing to use a part of other land, the courts can order the creation of an easement, whether the owner agrees or not.For example, if you are building a building, and you need to install underground support, part of which is under your neighbour’s property, an order can be made granting an easement to install that support. A right of way can even be created by court order.

If someone uses part of the property as a right of way for many years, even though they had no legal entitlement to do so, this can create a legal right of way. In New South Wales, the minimum period is 12 years.

How is an easement changed or cancelled?

Of course, an easement, including a right of way, can be changed or cancelled by agreement between the owners. It can also be cancelled by the land titles office, if it is provided with convincing evidence showing that the easement no longer has any real use.

When buying a property, are you affected by easements?

Easements form part of the title to property. So, if you buy a house or other property, where an easement has been previously created, you will be bound by that easement. Your solicitor needs to check whether any property you by is affected by any easements, including rights of way. They can have an important effect on the value of the property. For example, easements may prevent you building on a part of the land affected by an easement.

For more information contact  Andrew Somerville  or Hannah Martin

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