When you own a property you generally have the exclusive right to use that property, and to stop others from entering onto it. Put simply, an easement grants another person (or company) the right to enter onto your land. So if you’re buying a property with an easement on it, it’s important to understand exactly what that means.
What is an easement?
According to SA Water, almost 9 out of 10 South Australian properties have an easement over them. An easement gives an individual or a company (grantee), the right to use land for a particular purpose. An easement can restrict how the owner of the land (grantor) can use their property.
Common easements include:
* pathways and walkways
* for the supply of utilities – eg water, electricity, gas
* rights of way and access roads
* the right to park a vehicle
* party walls.
Easements and rights of way that are registered on a certificate of title will remain as the land is bought and sold. It can only be removed when both the easement holder and the owner of the land agree to it. Some easements may not be listed on the certificate of title, including electricity, sewerage and water, telecommunication easements. These are referred to as ‘statutory easements’.
If SA Water has a sewer pipe positioned under your land it is likely they will have an easement on your property. This entitles SA Water to access the land to repair, maintain or replace this pipe.
How an easement can affect property
There may be restrictions placed on how you can use the property and the land the easement covers. This can include building on the easement. When applications for development approval are lodged, any registered easements will be taken into consideration.
You may not be able to build in an area that would restrict access to the easement, or to fence off a right of way to prevent access. Other types of restrictions may apply – for example, you may not be able to plant certain types of trees on or near a water pipe.
If your property holds an easement over someone else’s land this could be a benefit that may increase the value of your property. However, if someone else holds an easement over your land, the opposite may be true. Easements in favour of privately-owned land means you will have an ongoing relationship of the owner of the infrastructure running under or over your land.
If you don’t check the easements on your property and the restrictions associated with it when you build, you will be held responsible for organising and paying for the structure to be removed, and repairing any damage caused.
Before you start any digging works on your property
Contact Dial before you dig before you start any digging works on your property. This will reduce the likelihood of damaging underground services and pipes.
How to find out if an easement is registered
- The certificate of title may have information about any easements and their location on the property. A plan may be attached to the certificate of title showing the exact location.
- You can contact the easement holder for more information on its size and location.
- You can engage the services of a professional surveyor to locate and measure the easement on the property.
If you are planning to buy a property, your registered conveyancer will be able to locate information on your behalf about any easements registered. This information will also be included in the buyer’s information notice and the vendor’s statement (Form 1) that the vendor or their agent will provide. You should carefully consider all the potential implications of an easement on a property before you sign the contract of sale.
As a land owner you can refuse a request to register an easement, but in rare circumstances some statutory bodies, eg. SA Water, can register an easement without your permission.
Getting an easement registered, changed or removed
It is strongly recommended that you engage the services of a registered conveyancer if you intend to register, remove or change an easement.
When an easement is first created, you may be able to negotiate for compensation from the grantee. Once an easement is registered you can’t refuse the grantee the use of, or access to, the easement.
An easement can only be changed or removed when both you and the grantee agree to it. If no agreement between the grantor and grantee can be reached the matter can be taken to court for a decision.
You can discuss easements further with your conveyancer, who will be able to refer you to the relevant local and State authorities for more information.
Connolly Wilson Conveyancing’s team of registered conveyancers are South Australian experts in the legal transfer of interests in real property. The advice on this website is general in nature. We recommend discussing any planned property dealings with us to ensure all relevant details have been considered. You can chat to one of our friendly conveyancers by getting in touch today.