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Understanding Easements

14 September 2012

AUTHOR:Kevin Birch

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.