The Basics of Easements

What are easements, how can they be created, and how can they be removed?

What is an easement?

An easement is interest in land that gives someone else a right to use a defined portion of land for a specified purpose.

Easements are registered on the title of the property and are usually shown on plans of the land. They generally benefit one piece of land, and burden another piece of land. Sometimes an easement might benefit a public authority (like a local council), or benefit a road.

Common examples of easements include:

  • right of carriageway,
  • easements to allow for supporting structures; and
  • easements for services such as electricity, sewerage, water.

How can easements be created?

Easements can be created:

  1. Expressly (for example, you register it, or registration is made by way of a plan of subdivision).
  2. By way of implication (easements are implied through the common law, however this rarely occurs).
  3. By long term use or Prescription (equivalent to someone getting possession of an easement by saying they had a right to it because they used it for a long time – this is also rare).
  4. By orders of the Court, including orders by way of:
    • section 88K of the Conveyancing Act 1919 – the Court may make an order imposing an easement if reasonably necessary for the effective use. However the Court must be satisfied with respect to a range of issues, including that the grant of the easement is not inconsistent with public interest, the owner of the land which is burdened with the easement can be adequately compensated, and all reasonable attempts have been made to obtain easement by agreement; and/or
    • section 40 of the Land and Environment Court Act 1979, where the Land and Environment Court can impose an easement during Court proceedings.

How can easements be removed?

Easements can be removed by:

  1. Express release (for example, the parties agree to remove the easement).
  2. Abandonment (this is not just a long non-use period – there must be acquiescence by the benefited person. For example, the benefitted person builds a fence to block their own access to a right of way easement).
  3. Alteration to the benefited party (easements are altered in this way through the common law, however this rarely occurs).
  4. Statutory extinguishment (where a law is passed to extinguish the easement).

For legal assistance in regards to easements, contact Alyce Kliese by clicking here.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.