TAS Appurtenant easements
- Thread starter Kevron
- Start date
Maybe. And generally yes, but it really depends on the terms of the easement grant.
The land the easement is granted over is the servient tenement, and the terms of easement will either be statutory (more often the case with government authorities), historical (along the lines of common usage over a long period of time, and pretty rare), or governed by the contract formed to grant the easement.
Easement rights lay over the top of your existing land rights - they don’t remove them. So, unless the granted easement refers to exclusivity, or clearly indicates in some manner which is inconsistent with your use of the area, then generally you will be able to use the easement area so long as you don’t unreasonably interfere with the grantee’s rights. For example, assuming a ‘usual’ case without knowing what is actually in your specific easement (i.e. don’t take this as indicative of anything in a real sense): it’s likely you will be permitted to travel across the easement, but you won’t be able to block the easement unless there is an emergency situation (and even then, only for the reasonable period to resolve the emergency).
Also: You cannot have an easement in your favour over your own land - that would be granting a restricted right to yourself over a piece of land you already have total rights over (subject to Crown reservations and registered encumbrances) - so you don’t need to register your own easement to use your rights. The land titles office would stop you trying anyway.
The land the easement is granted over is the servient tenement, and the terms of easement will either be statutory (more often the case with government authorities), historical (along the lines of common usage over a long period of time, and pretty rare), or governed by the contract formed to grant the easement.
Easement rights lay over the top of your existing land rights - they don’t remove them. So, unless the granted easement refers to exclusivity, or clearly indicates in some manner which is inconsistent with your use of the area, then generally you will be able to use the easement area so long as you don’t unreasonably interfere with the grantee’s rights. For example, assuming a ‘usual’ case without knowing what is actually in your specific easement (i.e. don’t take this as indicative of anything in a real sense): it’s likely you will be permitted to travel across the easement, but you won’t be able to block the easement unless there is an emergency situation (and even then, only for the reasonable period to resolve the emergency).
Also: You cannot have an easement in your favour over your own land - that would be granting a restricted right to yourself over a piece of land you already have total rights over (subject to Crown reservations and registered encumbrances) - so you don’t need to register your own easement to use your rights. The land titles office would stop you trying anyway.
Normal people (that is, people who are not lawyers), don't use words like "appurtenant"
(unless, say, they have already found them on a web search...)
If you care to tell us some back story, and maybe ask the question you really want an answer to,
we'll try and say something less technical, and perhaps more meaningful.
