Easements Made Easy!

Easements Made Easy!

What is an easement?

An easement is generally a right given by one land owner (the burdened land) to an adjoining land owner (the benefited land) to use the burdened land in a way consistent with the terms and conditions of the easement.

Types of easements

The most common types of easements are:

  • right of carriageway (usually to drive vehicles over the burdened land)
  • right of footway (to pass over the burdened land by foot only)
  • to drain water (most often under the burdened land)
  • to drain sewerage (we hope under the burdened land!)
  • for services (such as water, gas, electricity and telephone)

How is an easement created?

An easement is usually created after the affected land owners reach agreement on the terms and conditions of the easement.

The agreement is usually formalised by a Transfer Granting Easement, which is accompanied by a full plan of survey and a section 88B instrument, and registered with the land and property of department of the relevant State. Once registered, the easement will usually be shown on the Title of the burdened land.

If agreement cannot be reached between the affected land owners court proceedings can be commenced seeking a court order for the making of an easement.

What may a court consider?

The key thing of a court will consider when considering an application for the grant of an easement under section 88K of the Conveyancing Act 1919 (NSW) is whether the easement is ‘reasonably necessary’ for the ‘use’ or ‘development’.

The court will also direct its attention to the primary purpose of the proposed easement, whether the easement is to be ‘reasonably necessary’ for the effective use of the ‘development’ of the land that will have the benefit of the easement and whether the easement would be in the public interest in effective land use.

How we can help you

Recently we were involved in negotiations and a settlement related to an easement sought by a developer through our client’s land for the purpose of draining water.

Our expert legal team was able to negotiate the terms of the easement and a settlement which resulted in a windfall to our client of hundreds of thousands of dollars.

If you need any help with easements and especially if a developer has approached you, please let us know and we will happily help you every step of the way.

You never know, it could be you who receives the next windfall!

This article was prepared by David Gordon. David is a solicitor with a keen interest in property and strata law and is happy to assist you with any legal questions, negotiations or disputes. Just email or ring him anytime.