Are you thinking of buying a new house? Or maybe considering building that new shed or garage you’ve been thinking about? You’re not alone. As we head into the start of 2014, most indications are that the property market is back on an upward trend and will continue along in this fashion for the foreseeable future. However, many of the properties that will be exchanged or improved upon in the New Year will be encumbered by an easement. Most of the owners of these properties will be unaware of the potential implications that an easement may have for them.

With that in mind, here are a few important introductory facts to be aware of:

What is an easement?

An easement is a right held by one person to use the land, or a portion of land, of another person for a specific reason or to restrict its use. This right of the easement does not provide ownership of the land, merely a right to use or restrict that land for the allowed reason.

Some common examples of easements are:

  • Underground pipe drainage – allocates a part of the land for the construction and maintenance of underground drainage infrastructure.
  • Open cut drainage – allocates a part of the land for construction and maintenance of an open drain or channel for excess runoff.
  • Overland flow – found generally in rural areas, and allocates parts of the land (including earth mounds and drains) to provide runoff for storm and flood waters.
  • Rights of way – Shared driveways and other access routes for vehicles and foot.
  • Service easements – Where services (gas, sewerage or electricity) need to be conveyed under or through the land, a service easement will be provided.
  • Other easements can restrict the use of the land by its owners for the benefit of others (e.g. building and height restrictions etc).

Any easement that may affect a property will be noted on the Certificate of Title for the property under the heading of Easements, Encumbrances and Interests. It is also important to remember that easements run with the land and that, even when both sets of owners change, the easement will continue to affect the land.

How are they created?

Easements can be created by either express grant between the different land owners; by resumption of the State or local government or another authorised person; or by court order.

What are the rules for building around easements?

Generally there are significant restrictions on the building of structures or improvements on or around an easement area and considerable penalties can apply if these regulations are not adhered to. However, this will depend on the terms of the easement and you should familiarise yourself in great detail with these terms before any work commences.

Can you remove an easement?

There are many ways that easements can be removed (agreement between owners, non use of the easement or changes to the land enjoying the benefit of the easement) however easement removal is always a very complicated process. It is important to obtain independent legal advice if your land is either burdened or benefitted by an easement so you can remain fully aware of your rights.

How can we help?

Cooke and Hutchinson Lawyers have dealt in property law for over 40 years. We have advised numerous clients regarding issues involving easements and would be only too happy to help you in the same way. If you have any questions about easements or are concerned about potential impacts on your property, give us a call now on 1800 000 993.

Alternatively, you can send us an email at