What is an easement?

If I tell you that an ‘easement’ is also called a ‘right of way’, that might help to make it a bit clearer.

An easement is a section of land that forms part of your block, and belongs to you, but someone else has the right to access it.

That right:

• Is only for a specific person or company. You don’t have to let just anyone on your land. 
• Is only for a specific purpose. They can’t throw a party out there.

A common example of an easement is where your neighbour needs to use your driveway to get to their block - you see this a lot where a block has been divided into a front and a rear property, battle-axe style. Or maybe you have two narrow driveways next to each other, and both need to use part of the other person’s land to turn around. Easements are often registered when a block is subdivided.

Most properties also have statutory easements. These aren’t registered on your title. Statutory easements give utility companies the right to come onto your land to do repairs to power or telephone lines, or to maintain a sewage line.

There’s also a legal concept called a prescriptive easement. This basically means that if someone has been using your land as a right of way for the past 20 years, they might have an argument that they should be allowed to keep doing so. Even if there’s nothing on the title. It’s pretty unlikely that you’ll come across that particular problem, but now you know what it is if someone mentions it. We’ve actually got an article about this if you want to know more, but doesn’t seem to apply to you.

What does the easement mean for you?

You have to provide clear access to the easement. The swing set that was disclosed to you may have to be removed if access is required, because it’s blocking the right of way. That shouldn’t be an issue, I can’t see you or your husband using that on a regular basis 😉

You won’t be able to build on that strip of land without consent. If you want to build over a statutory easement, you need consent from your local council. If you want to build over a registered easement, you need consent from the person who benefits from it. If it’s a shared driveway, that’s your neighbour.

When you come to sell down the track, you’ll also need to disclose the easement on your contract documents.

A title search that shows easements on the property is a mandatory requirement on the sale of contract, so you’ll see it in the documents the agent provided you. Your solicitor will confirm this, which should be including this in their fees. If you buy a property and then discover an easement, it can put a serious crimp in your extension plans.

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