Think of an easement as a type of right of way. With an easement, one person is able to use another person’s land without having actual possession of the land.
Examples of Easements
One example of an easement is where a person needs to use a driveway that is on another person’s property to access their own property. This benefits the person who needs to use the driveway, but creates a burden for the person who has the driveway going through their property.
Another example would be if there were two properties side by side and one property could only get access to water if a pipeline went through the other property – creating a benefit to the person who is now able to access water but a burden to the person who has the property with a pipeline through it.
How do I create an easement?
This all depends in which state you reside. Usually, you would engage a property lawyer to assist you with the hands-on details.
In Western Australia, easements are mainly created by a deposited plan under either the Planning and Development Act 2005 (WA), the Transfer of Land Act 1893 (WA) or the Strata Titles Act 1985 (WA).
New South Wales
In New South Wales, an easement can be generally created by registering either a Transfer Granting Easement form, Transfer Including Easement form, Lease form, Mortgage form or Charge form per the Real Property Act 1900 (NSW). A sketch or a deposited plan must be annexed to the form.
In Victoria, there are three types of easements – all with unique ways in which they can be created:
- Private Easements – can be drafted into a deed or an instrument of transfer.
- Regulatory Easements – can be created under the Subdivision Act 1988 (Vic) and Transfer of Land Act 1958 (Vic).
- Prescriptive Easements – are rare, but they can be created under the common law (without an express grant).
An easement can be created in Queensland by either a Grant of Easement or Resumption of Land, or by a court ordering that a user has a statutory right to an easement.
How do I know if there is an easement on my property?
Any easements that impact a property would be documented on the Certificate of Title. It must identify who the easement holder is, the location and the dimensions of the easement.
In Western Australia, the Certificate of Title can be obtained from Landgate.
New South Wales
You can obtain a Certificate of Title from the NSW Land Registry Services if you reside in New South Wales.
Landata is where you can obtain your Certificate of Title from in Victoria.
You can get your Certificate of Title from the Queensland Land Titles Register.
How can I remove an easement?
An easement can be removed from a Certificate of Title if:
- The parties come to an agreement and sign a written deed,
- There is abandonment of the easement, or
- A Court orders removal of the easement.
A property lawyer can help you create or remove an easement and check if there is an easement on your property.
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