Easements – Rights, Obligation and Effect

08/01/2020

There are many circumstances in which a land Owner would need an Easement from the Owner of adjacent land.

We find there are many enquiries by Owners who wish to develop their land for example, by demolishing the existing residence and building a new home or possibly a duplex.

A person who wishes to develop the land does not have an automatic right to drain water from their land onto the neighbour’s land. 

One example where this occurs is when Local Council in approving a Development Application, requires the Land Owner to obtain an Easement over another’s land (the neighbour’s land) to allow for stormwater to drain from the Owner’s land across the neighbour’s land.

When you are considering a purchase or development of land you will need to carefully consider your position in relation to obtaining an appropriate Easement or other means to undertake the development including for example, to drain stormwater from your property.

An Easement is a legal right to use a portion (which is specified) of somebody’s else’s land, usually your neighbour’s land for a specific purpose.  There are many common Easements for example, to allow neighbour’s access to your land for example, by shared driveways or walkways; to allow for services to be constructed on a neighbour’s land; or to allow stormwater and drainage from your land across the neighbour’s land.

Many Easements are between Owners of different land.  However some Easements for example, for telephone lines are authorised by legislation.  Most often terms relating to grant of an Easement can be agreed. 

Any restrictions, rights and obligations in relation to the Easement will depend upon the words of the Easement itself.  It is important that the terms of the Easement be carefully considered and the terms set out the rights and obligations of each of the parties, namely the party who owns the land and the party who is obtaining the benefit of the Easement.

There are many “usual” terms that are included in agreements.  This is a good starting point.  Some matters for consideration are:

• Appropriate compensation is usually paid by the person seeking the benefit of the Easement to the person providing the right. 
• There are many considerations in relation to an Easement.  Further it is often appropriate to obtain a Valuation at an early stage to enable negotiations however it is not always the appropriate course.  It will depend upon the status of the negotiations and the attitude of the parties including the neighbour.
• The Easement should identify the boundaries of the Easement.
• Who is responsible for the maintenance of the Easement?

For example, an Easement may allow one party to construct a stormwater drainage pipe beneath their neighbour’s property and will often include a provision obliging the party who has constructed the pipe to maintain them. 

This would require the person with the benefit of the Easement to have access to their neighbour’s land for the purpose of maintenance or rectification of the Easement (if damaged) as the case may be.

There are many land Owners who oppose any Easement being granted by them to any neighbour on any basis.  In those circumstances, the question arises as to whether a Court would provide an Easement.  In this regard we refer to our further article dated 15 January 2019 “Building and Construction – How to obtain an Easement to drain water”.

Once an Easement is registered on the land the Easement passes (with rights and obligations) onto subsequent Owners.  It is an affectation or benefit that affects your land one way or another. 

Land Owners cannot materially or substantially interfere with the enjoyment of persons who have the benefit of the Easement.

What constitutes substantial interference will depend on the facts and circumstances of each particular case. There are many instances which deal with particular cases which constitutes substantial interference.

It is our recommendation that if you are (or may in the future need to) seeking an Easement or have been requested to provide an Easement you obtain early advice so that you are aware of the various options and/or alternatives that are available to you in your particular circumstance.  When advising we would require such things as:

1. Whether you are seeking the indulgence from the neighbour to obtain an Easement?
2. Whether you are the neighbour having been requested to provide the Easement?
3. What alternatives there are for the person seeking the Easement?

There are always alternatives however some of them are so onerous that those alternatives are excluded from any consideration of the matter.  The question is what reasonable alternatives are available?

Having considered the factual matrix we can advise you as to our recommendation as to the approach to be adopted in trying to achieve the outcome that you wish.

In the event that the parties cannot agree and it appears that there is no alternative but a Court case, it is to be remembered that no matter which party you are, there will be a large cost.  Even if you receive an Order from the Court that the other party pay your costs, that Order will not cover the entirety of your costs.

At all times you need to consider the cost/benefit of the actions or inactions that you make. 

If you are proposing to seek the benefit of an Easement from your neighbour and are unsure of the process or have any concerns or you have been approached by the neighbour of the adjacent land seeking the benefit of an Easement from you, at Watson & Watson our experienced building and construction Solicitors can assist and advise you in relation to all matters pertaining to Easements. 

Please do not hesitate to contact Richard Watson Accredited Specialist Building & Construction or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek the appropriate advice and avoid what can become a litigious and costly exercise.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.