• The Easy Guide To Understanding Easements

    Posted on May 20, 2014 at 1:33 pm under Residential and Commercial Conveyancing category.

    Conveyancing, like many aspects of the law, can be filled with confusing terminology that can leave a reader with more questions than answers.

    An easement is a right in relation to land. It grants the holder a right to make use of land held by another. Examples of easements include rights of way and rights of drainage.

    By way of example, a right of way easement is generally a driveway or footpath that allows a person to access their property through someone else`s property. The right of way easement would be lodged over the title of the property which the person would require passage over. These types of easements are common where a property is isolated and has no alternate access to a road, which occurs in both city and rural settings.

    Implied Rights
    An easement can grant implied rights in favour of the easement owner. These rights extend upon the stated rights and are designed to support the easement and its operation. Using the above example of a right of way easement, the courts have previously found implied rights such as the right to maintain, repair and upgrade, as well as the right to load and unload, to park, and to illuminate. These implied rights generally manifest themselves wherever the right is reasonably necessary for the continued use of the easement, however they can be excluded.

    Purchasing a Property with an Easement
    The importance of understanding the rights and requirements of a particular easement cannot be understated, particularly when you are purchasing property.

    Prior to the purchase of a property in Queensland, a search should be undertaken that will inform the prospective buyer of all registered third party rights over the property. Commonly these rights include the crowns reservation for minerals, and mortgages, but can also extend to less common reservations on the land such as caveats and easements.

    It is important to understand prior to the purchase of property not only whether an easement exists, but the full impact of the easement. This would generally involve discussions with your lawyer, and potentially the easement holder.

    Removing an Easement
    Sometimes an easement is best dealt with by removing it entirely. How difficult, or even if it is possible to do so, will depend entirely on individual circumstances.

    Some ways in which an easement can be extinguished or modified are by agreement of the parties, abandonment (or non-use of the easement) and changes to the land.

    BMLaw has a great deal of experience in both residential and commercial conveyancing matters. Call BMLaw on (07) 3482 6999 or email us at mail@bmlaw.com.au.