Overview
Things to Know if There’s an Easement on Your Property
An easement allows a person or entity to use part of someone else’s land for a specific purpose, without owning it. The land that is subject to the easement is called the servient property, while the person or company with the right to use the land is known as the easement holder.
In Queensland, easements are commonly used for:
- Access to neighbouring properties
- Utility infrastructure (water, gas, electricity)
- Protecting environmental or conservation areas
Easements can be either permanent or temporary, depending on their purpose. They can be established by mutual agreement or, in some cases, through a court order. Understanding the type of easement and how it affects your property is crucial, as certain easements may limit how you can use or develop your land.
Types of Easements
Easements come in various forms, each with different implications. Below are the most common types:
Right-of-Way Easement
Allows the easement holder to cross your property, typically to access their own land. This may involve walking, driving, or even bringing vehicles across the servient property. Right-of-way easements are usually listed on the property title.Statutory Easement
Used for essential services, like utility lines (water, sewerage, gas, electricity). This type of easement benefits utility companies rather than private individuals and may not be clearly listed on the title. More in-depth searches may be needed to uncover these.Prescriptive Easement
Rare in Australia, a prescriptive easement is created after someone has used the land without permission for a continuous period, usually 20 years or more.Implied Easement
Established by law, rather than being recorded, an implied easement allows access or use based on necessity, such as accessing a landlocked property.
Positive vs. Negative Easements
Easements fall into two main categories: positive and negative.
Positive Easement
Grants the easement holder the right to perform actions on the servient land. Examples include:- Right of way
- Right to install or maintain utilities
- Right to access or repair a structure
Negative Easement
Restricts the landowner’s activities. For example:- Right-to-light easement: Prevents the landowner from building structures that block light to a neighbouring property.
- Air or noise restrictions: Prohibits activities that affect air quality or cause noise pollution.
Negative easements are less common and can be more complicated to establish because they limit the property owner’s rights.
How to Identify Easements on Your Property
A conveyancer or property lawyer can help you uncover easements affecting your land. Here are common methods to identify easements:
Title Search
Easements are usually registered on the property title. Conducting a title search will reveal any existing easements or covenants.Land Survey
Hiring a licensed surveyor to map out the boundaries and physical markers can help identify any existing easements on the property.Council or Government Records
Local councils or state agencies maintain records that may show easements or other restrictions.Utility Providers
Utility companies can provide information about easements for infrastructure, such as gas or electricity lines.
Table: Common Types of Easements
Easement Type | Purpose | Common Holder |
---|---|---|
Right-of-Way Easement | Access across another’s property | Neighbouring property owner |
Statutory Easement | Infrastructure for public utilities | Utility companies |
Prescriptive Easement | Long-term, unpermitted use of land | Individual or company |
Implied Easement | Implied by law due to necessity | Property owner or neighbour |
Can an Easement Be Removed?
In some cases, it’s possible to remove an easement from your property, but this depends on the type of easement and its legal framework.
Agreement with the Easement Holder
You can negotiate directly with the easement holder to have the easement removed. This requires both parties to agree and file the necessary paperwork with the Titles Office.Court Petition
If an easement is no longer needed or its circumstances have changed, you may petition the court to revoke it. You must provide evidence that the easement is no longer relevant or that it unfairly restricts your use of the property.
Easements are tied to the property and remain even when ownership changes. Removal can be a complex legal process, so seeking legal advice is crucial.
Important Points to Consider:
- Easements may limit how you can use or develop your property.
- Easements stay with the land, even if ownership changes.
- A thorough property search is necessary to uncover all easements affecting your land.
- Removal of easements typically requires legal negotiation or court approval.
How We Can Help
Our team of experienced property lawyers in Queensland can guide you through:
- Identifying easements on your property
- Understanding your rights and obligations
- Negotiating easement removal or modifications
- Ensuring compliance with Queensland property laws
If you have any questions or concerns about easements or property law, contact us today for expert advice and assistance.
Disclaimer: This information is intended for general guidance regarding Queensland Property Law. It does not constitute legal advice. We strongly recommend seeking legal advice tailored to your specific situation. For expert assistance, call 1300 590 613 or use our live chat to arrange an initial consultation.
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