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 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 in 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 on 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 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 [2015] 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.

1 Comment
  • April 8, 2018 8:44 am

    Hi
    I am a land owner in NSW and the original DA has a concession to local council for land at front of my property for utilities etc. Because of this it is stated in the contract that our legal access is on a different road to our address.
    Are we able to apply to have this changed to allow us legal access to our property across the land which we maintain and has always been used as access to property? It is the only driveway that has ever been on the subdivided property since the DA approved over 40 years ago.
    Cheers
    B.Fisher

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