How Easements Affect a Property Development
An easement gives the right to cross or otherwise use a portion of someone else’s land. Why is this important for developers or property buyers? Well, sometimes it can adversely affect a peaceful living arrangement or prevent a project from moving forward.
An easement gives someone the right to use a section of land for a specific purpose even though they are not the owner of that land. A property may be affected by restriction on the use of the land resulting from the easement. In certain circumstances, such as having unsightly power lines on your land, it can negatively affect the property. On the other hand, if the property has the right to use someone else’s land, this is usually a benefit and may increase the value of the property.
It is relatively common to have a drainage or sewerage easement running along the back fence, which will be noted on the title plan. Some properties will have a manhole within their property that will be used to access the sewer or drain for maintenance.
Prior to purchasing any property, a prospective buyer or developer should consider the effects, particularly the restrictions, an easement or right of way may cause. It could for example affect new constructions or alterations to the property, especially if the easement runs from front to back. If there are water pipes involved, there may even be restrictions on the types of trees you can plant in certain areas.
Land owners can also be compensated when easements like shared driveways, power, telephone lines or drainage easements make up part of their property.
Different Types of Easements
There are many different types of easement agreements, meaning that the requirements and restraints placed on your ability to develop the land will differ. Common types of easements include:
- Utility easements: an agreement between a property owner and a utility company to allow power lines, water piping or other types of utilities through a property. This entitles them to access the land to repair, maintain or replace parts related to these utilities
- Easements of support: This type is in relation to excavation works on land. It is similar to a utility easement however it requires excavation works, e.g. establishment of power lines or natural gas
- Private easement: usually between two private parties, it allows one party the right to use a piece of property for personal need, e.g. a dam
- Easement by necessity: also known as ‘right of way easements’ – this arises when one party is required to use a neighbour’s driveway to access their home
- Easements for light and air: restricts the construction of walls or buildings in favour of another party’s access to light and air – in other words their ‘view’
- Rights pertaining to artificial waterways and sewerage: deals with rights and restrictions for waterways, canals and sewerage.
Because of the importance of access and services, the owner of a property with easements has the responsibility to respect them. In legal terms, they have the ‘burdened easement’ and the rights of someone with a ‘benefited easement’ take precedence over any inconveniences experienced by the owner of the burdened easement property.
If an authority has an easement registered over your land, they have the right to access the easement to maintain or repair the easement land or their equipment on the land. You can’t interfere with their right to access the easement by locking them out or by building, for example, a shed over the easement land because they have the right to take appropriate action such as destroying the building or cutting the lock.
If you are concerned about any potential issues, prior to the property purchase, buyers should do their due diligence to check if any easements affect the property – either positively or negatively.
What is an Easement Used for on a Residential or Commercial Development?
For anyone dealing with a development, it is essential to know what easements benefiting or burdening the land already exist and what new easements need to be created. It is also essential to know the extent and limitations of the rights under those easements. That is to say, how those easements are to be construed or interpreted and what restrictions on the exercise of these rights there may be.
In a functioning development, easements are essential for:
- access for pedestrians, persons with mobility disabilities, vehicular and public
- the right to use a garbage room and trolley room
- the right to park vehicles
- electricity substation purposes with associated restriction on use of land positive covenant
- stormwater detention and overland flow with associated restrictions on use of land and positive covenants
- drainage of water or sewage
- the right to use service bay and loading dock
- support of awnings or to erect signage
- electricity purposes or services
- support and shelter
- emergency egress
- asset protection zones against bushfire threat
- kitchen exhaust and to use a grease arrestor room.
How Easements can Affect a Property Purchase
When buying a property it is important to understand your rights and obligation to understand the true potential of the land. For example, there was a banker who wished to purchase a block of land with a spectacular view high up on a hill in the spectacular Northern Beaches. This was going to be his dream block of land for his dream home he worked so hard to finally realize. However before the exchange of the property, it was discovered that the block would be too narrow to turn his car around to get in and out of the property if he was to stick to his original plans.
His options were as follows:
- miss out on the land because it didn’t have an adequate turning circle for his car
- buy the land and pay to install an expensive electronic driveway turntable or
- buy the land and in conjunction with that sale, approach the neighbour about an easement on their property
Looking at the layout of the land next door, we were able to work closely with a lawyer to create an easement on the neighbour’s property to allow the truncation of the driveway to naturally flow through. In this case, the easement was a win-win for the neighbours because they received monetary compensation to have the easement secured over a small corner of his land which was otherwise dead space. Our client managed to build his dream home designed to take advantage of the spectacular view.
Another example of when easement access can easily solve a development dilemma occurred in Jimboomba – a suburb in the Brisbane outskirts. In this case, a large block of land was available for a residential development, however road access to the lot was prone to flooding and planning laws changed to restrict development on the land due to this overlay. The development application the buyer had in mind was refused by the council because the future residents would be cut off to the township in a flood. Should the buyer had factored in a right of way easement with a neighbouring lot at the back of the parcel of land, the development would have had access to a road directly to the town centre for evacuation, enabling the multimillion dollar development to go ahead. The cost of the easement would have been far less than the court costs that followed the refusal. [Jimboomba Lakes Pty Ltd v Logan City Council & Anor  QPEC 52]
When buying property it is important you understand your rights and obligations when it comes to easements affecting your property, especially when it favours one land owner over another.
Please note that if there is a dispute regarding easements it is recommended that the land owners obtain independent legal advice to ensure their rights and obligations are set out and clarified.
The Buyers Agents at Cohen Handler are knowledgeable about the regulations and restrictions relating to easements and will work with you to find a solution to any property issue. If you are interested in finding the right property for you at the right price, contact us now.
Frequently Asked Questions
WHAT EXACTLY IS AN EASEMENT?
An easement refers to the legal right of an individual or member of the public to make use of another’s property for a specific or special purpose. This typically takes the form of an individual landowner having the right to use a private road on another’s property in order to access their own – but may take other forms as well.
ARE THERE DIFFERENT KINDS OF EASEMENTS?
Easements will take different forms. Most often you will see reference to a common easement, one in which both the public and the landowner retain the right to make use of the easement as a path between two points off the property. But there are also alternative modes of easement that can be initialled as a protection for utilities used by surrounding properties such as electrical cables or stormwater drains.
WHAT IS AN EXAMPLE OF AN EASEMENT?
Easements tend to come about as a way of generating protection for a specific use of another’s property. It might be that an easement has been created to prevent a landowner from altering or building on land that has been used as a pathway. But it might also be that an easement is in place to protect common facilities like stormwater drains that run through a portion of a property.
Can I dispute an easement on a property?
If you find an easement on your property too restrictive, in some cases it can be disputed and removed. Broadly, easements can only be changed or removed when both parties agree to it, or pending a binding decision by a court.
Easements can be created between individual property owners – such as one party allowing right of access across their property to the property of the other party – or between property owners and service providers/government agencies. The latter are most frequently registered with the title when the land is initially acquired by the developer, making them much harder to address down the line.
HOW DO YOU CANCEL OR MODIFY AN EASEMENT?
Under very specific conditions, an easement may be cancelled or modified. But this process mirrors the above detailed disputes process. Meaning that, at a practical level, an easement cannot be modified or cancelled without the agreement of both parties, or a pending or binding decision by a court.
Is it bad to have an easement on your property?
Depending on the specific nature of the easement, your enjoyment of your property may not be affected in the slightest. However, understanding what the easement permits and forbids is essential to ensuring that you get the right property for your needs. Talk to a buyer’s agent at Cohen Handler to find your ideal property.
What does it mean if you have an easement on your property?
Having an easement on your property means that under certain circumstances, other people may have a legal right to cross, access or otherwise use a portion of your property. Depending on the nature of the easement, this may restrict the type of development you can do such as forbidding digging that may disturb a subterranean powerline.
Who owns the easement on my property?
An easement does not affect ownership of the property, just access. Even under a right-of-way easement in which you are required to allow members of the public to pass through a defined area of your land, you retain ownership over that land. Cohen Handler can help you better understand the nature of any easements on any land you’re considering, helping you make an informed choice.
What can you do on an easement?
What you can and cannot do on an easement will depend on the nature of the easement. The easement will be registered on the title and generally shown on the plan. A description of the implications of the easement will be noted on the plan or described in an additional document. A Cohen Handler buyer’s agent will be able to help you understand your rights and responsibilities under any easement you may encounter.
WHO IS RESPONSIBLE FOR CLEARING/MAINTAINING AN EASEMENT?
Easements are a guarantee of public or private access to property in cases in which that access is fundamentally important. Legally speaking, it is the property owner that has the burden of easement to bear – and that entails respecting the rights of those with a benefitted easement. This right is deemed to take precedence over the inconvenience of the property holder maintaining that easement in most cases.
WHO OWNS TREES ON AN EASEMENT?
An easement may have trees and foliage growing throughout. While that foliage in many cases will still belong to the property owner, in most utilities’ easement cases, the local council will have the right to clear that foliage. Further, they will not be bound by an obligation to replace or backfill the easement once any works are complete.
IS IT LEGAL TO BUILD A FENCE ON AN EASEMENT?
While there may be conditions under which building a fence over an easement might be permitted. It is only advisable in cases where you have sought the permission of your local council. Fences may obstruct pedestrian access to common easements, or limit access to vital maintenance points in utilities easements.
How much does an easement devalue a property?
Many easements have no impact on the value of a property, as they are highly unlikely to affect any development plans for the site. In the rare case that a particularly strict easement could affect property value, Cohen Handler’s buyer’s agents will be able to explain this to you to help you make an informed decision about your property.
How close to an easement can I build?
How close you can build to an easement will depend on the nature of the easement, such as whether it is to protect utility service or right of access. Cohen Handler will be able to advise you during your property search whether any land you’re considering has an easement on it and what its implications are for your development plans.
WHAT IS A STORMWATER EASEMENT?
A stormwater easement is just a form of drainage easement. One put in place so as to ensure that the relevant properties have access to drainage that carries excess water away from their properties.
HOW DO I ACCESS THE DRAINAGE PLANS FOR MY HOUSE?
In the case that you are seeking to renovate, demolish or otherwise alter your home, you will need to gain access to the drainage plans for your property. There are three types of plans that you will need to gain access to. The sewer detail plan, the water detail plan, and the property sewerage plan.
These plans will provide you and your building professionals with the information you need to ensure that you are conducting works safely and mitigating any risk of impeding upon the utility easements relevant to your project.
HOW CLOSE TO A SEWER CAN YOU BUILD?
How close you can build to a sewer will vary by case. But the information that you gain access to in the relevant sewer detail plan and property sewerage plan will provide you with a basis for which you can seek permission from your local council to build around or over a sewer easement.