Understanding Easements

Easements are a common inclusion on titles, and are frequently created as part of a subdivision process. They can also be created outside of the subdivision process, and although easements for access (commonly referred to as Right of Way easements) require Council’s consent, the creation of most other easements do not require a Council consent. Easements are registered on the title and therefore are carried forward when properties are sold.

The purpose of an easement is to create a legal entitlement for one party to obtain the partial use or enjoyment of another party’s property. The common easements are for access, drainage, power, telephone, gas, and water supply. The rights and powers created by easements are either those contained in the Regulations or otherwise amended by the Easement certificate.

Probably the most common form of easement is a Right of Way. This entitles the owners of a property to gain access to their property by way of a strip of land owned by an adjoining property owner. Frequently, a number of property owners will have the same rights over the same strip of land. In the past it was common for a number of owners to each own a small strip of land, which together formed a driveway, and a number of separate Right of ways were created. It is more common these days for such “common driveways” to be held in a single title, with each “user” owning an undivided share in the title.

For information pertaining to the purpose and rights created by Easements it is necessary to refer to the Easement documentation. This is referred to on the title, but the actual document is registered in the Land Transfer Office, and copies can be obtained.

Frequently Asked Questions

What are the most common types of easements?

Common easements include Right of Way (access), drainage, power, telephone, gas, and water supply. Right of Way easements are the most frequent, allowing property owners to access their land via a neighbouring property.

Do easements require council approval?

Most easements do not require council consent. However, easements for access, like Right of Way easements, typically require council approval before they can be created.

How can I find out the rights and obligations of an easement?

The rights and obligations are outlined in the easement documentation, which is referenced on the property title. The full easement document is registered at the Land Transfer Office and can be obtained for review.

Can multiple property owners share an easement?

Yes. Multiple owners can share an easement, such as in a common driveway. In such cases, each owner may have an undivided share in the title of the strip of land used for the easement.