We can help with:
An easement is a right applying to land. Easements allow someone access to land that they don’t own, for a specific non-exclusive purpose. They are typically used to secure rights of access & use of the land for utilities and infrastructure. Some examples include electricity lines, sewer/stormwater pipes and access ways (such as driveways or footpaths).
There are two types of easements, including:
- Private easements: made between the owners of two or more parcels of land. The dominant tenement is the land that obtains the benefit of the easement, whereas the servient tenement is that land that is burdened by the easement.
– Tenement: a piece of land that is held by an owner.
- Easements in gross: created in favour of the Crown or a public/local authority constituted by an Act of Parliament. This type of easement doesn’t have a dominant tenement.
– The Crown: the collectivity of the institutions of government.
Understanding easements in NSW and how they affect property is often complex and difficult. Obtaining easements, either through negotiation or the Court process is even more complex and difficult. Our team of lawyers has been assisting with obtaining easements through the Court process since the inception of s88K of the Conveyancing Act and S.40 of the Land & Environment Court Act.
We are regularly involved in advising clients (and at times other lawyers) on encumbrances on title or other rights that may prejudice enjoyment of property. We have assisted our clients by:
- Advising on the impact of easements, covenants, rights of way on both servient and dominant tenement
- Considering and advising on registered, implied and prescriptive easement rights
- Preparing of Section 88B instruments
- Drafting positive covenants and other easement terms
- Litigation in the Supreme Court to resolve easement or covenant issues
- Preparing, negotiating and, where required, taking proceedings to obtain easements over adjoining lands pursuant to S.88K of the Conveyancing Act and s.40 of the Land & Environment Court Act
What is an easement?
An easement is the right over someone else’s land and can include a private or public right of way, such as a footpath or access road, or a right to access utilities such as water supply or gas/electricity supply.
How do I know if there are easements on my property?
You can contact the NSW Land Registry Services to check if there are any easements on your property and what the details are. Otherwise, the team at Hones can make enquiries for you.
Can I remove an easement from the title?
If the grantor of the easement agrees, an easement can be removed from the title. Hones Lawyers can assist in documenting any agreement to remove an easement and file it with the Office of Land Titles. An easement can also be removed from the title by the Court if you can prove it is not needed anymore.
What is a right-of-way over land?
A right-of-way is a form of easement that allows another person to pass over your land. The terms of a right-of-way will usually permit this to be done by foot or by vehicle.
How do I remove an easement from my property in NSW?
An easement may sometimes be able to be removed, but it is important to comply with correct procedures. Hones Lawyers regularly advises and assists clients in removal of easements.
Who can vary an easement in NSW?
The terms of an easement will specify who has the power to vary it. It could be either a private landowner or a public/local authority.
Which land has the benefit of an easement?
The land which bears the burden of an easement is referred to as the servient tenement. The land which benefits from the easement is called the dominant tenement and the servient tenement. For example, if you have the right to drive over your neighbour’s land to access your property, then your land is the dominant tenement and the neighbour’s land is the servient tenement.
For more information on land easements call us on 02 8318 0788.