What is an easement?
An easement is a right granted to a landowner, or a public or local authority, over another person’s land for a specific purpose.
The landowner, or public/local authority, having the benefit of an easement has a right - that is limited to the terms of the easement - to come onto the land that is burdened by the easement to maintain the easement corridor only for the purposes of the easement
An easement may only be enforced if it is registered on the title of the affected land parcels. When the land is sold and transferred to the new owner, the rights and obligations of the easement are then held by and against that new landowner.
Details of registered easements are shown on the current Certificates of Title of the affected land parcels.
Council does not hold copies of Certificates of Title on its records, nor does it hold details of all easements registered on titles for land within the shire.
Is it a private easement or an easement in gross?
Prior to making any inquiries about an easement, it is necessary to establish whether it is a private easement or an easement in gross.
- Private – between two or more landowners. Common private easements include, but are not limited to, easements for inter-allotment drainage of water, rights of carriage way, or easement for water supply.
- Easements in Gross are created in favour of a public or local authority. Common easements in gross include, but are not limited to, easements for drainage or sewerage, easements for electricity purposes or a right of access.
Who maintains the land that is affected by the easement?
The responsibility of maintaining the land burdened by an easement remains with the landowner. An easement gives a right to the landowner having the benefit of the easement to maintain only the easement corridor for the purpose of the easement, for example, to enter onto the burdened land to clean pipes in a drain to ensure water can flow through stormwater pipes within the easement. All easements generally require the benefiting landowner or authority to make good any damage incurred when exercising their rights under an easement.
What if there is a dispute about an easement?
If there are disputes in relation to an easement, it is recommended that independent legal advice is obtained to ensure that all rights and obligations in relation to the easement are clarified.
To enable the rights of an easement to be enforced, it must be registered on the title of the land burdened and the land that benefits from the easement. It is recommended that when a property is being purchased that the legal advisor is asked to determine whether any easements are registered on the title and if so, whether there is any impact by the easement on your intended use of the land.
It is not Council’s role to provide advice to prospective purchasers about private easements, or to landowners in a dispute about an easement. Council will only provide advice about an easement in gross that is for the benefit of Council.