All You Need to Know About Easements Before You Buy

When you're buying a property, understanding easements is crucial. An easement is a legal right that allows someone to use part of your land for a specific purpose, without owning it (or vice-versa). While easements are common, they can affect your property's use, value, and future plans. In this guide, we’ll walk you through what easements are, how to identify them, and how they might impact your property. Whether you're a first-time buyer or a seasoned investor, knowing what you're dealing with can help you make a more informed decision.

At Zettle, we're here to help you navigate these complexities, so you can move forward with confidence. Let’s make sure you understand every step of the way, so you don’t get caught off guard.

Overview - What Is an Easement?

An easement is a legal right that allows someone to use a piece of land for a specific purpose without owning it. This right will benefit one land-owner, and burden another with the right to use part of the land, but it doesn’t transfer ownership.

Everyday Analogy:

Think of it as a shared driveway. If your neighbour uses your driveway to access their property, they have an easement over your land, but you still own it. Similarly, a council might have an easement that prevents you from building over part of your land, so that they can have access to underground stormwater drains.

While easements are common in property deals, they generally aren’t deal-breakers. It’s just important to understand what they mean before making a decision.

Types of Easements

Here are the most common types of easements you might encounter. Easements can benefit or burden specific parcels of land and often involve neighbouring properties, especially when access, support, or utilities are required:

Dominant Tenement / Servient Tenement

In the context of easements, there are two key terms you’ll often come across: dominant tenement and servient tenement. These terms describe the relationship between two properties when one has an easement over the other.

Dominant Tenement:

The dominant tenement is the property that benefits from the easement. In simple terms, this is the property that has the right to use part of another property (the servient tenement) for a specific purpose. The dominant tenement doesn’t need to own the land, but it is granted the legal right to use it in a particular way.

For example, if a property has an easement that allows its owner to use a shared driveway across an adjacent landowner’s property to access the road, the property benefiting from this easement is the dominant tenement. The dominant tenement enjoys a right of access or use but doesn’t own the part of the land it is using.

Example in Action:

Imagine you live on a shared driveway which is part of your neighbour’s land, however you both use it to access your homes. An easement is in place to ensure you are able to access your property. You are the dominant tenement because you benefit from the shared driveway to access the main road.

Servient Tenement:

On the flip side, the servient tenement is the property that is burdened by the easement. This means the owner of the servient tenement must allow the dominant tenement to use their land for the purposes specified by the easement. While the servient tenement is still owned by the landowner, the easement imposes certain limitations or responsibilities on the servient land.

In our shared driveway example, the property owning the driveway (the one you and your neighbour use) is the servient tenement. The servient tenement owner still owns the land but must allow the dominant tenement the right to use the driveway.

Example in Action:

In the same shared driveway scenario, your neighbour’s property (the one with the driveway) is the servient tenement because their land is burdened by the easement that gives you access to the driveway. The servient tenement owner is obliged to maintain the easement area to ensure it remains usable for the dominant tenement, as per the terms of the easement agreement.

Why It Matters for Property Owners

Understanding the roles of dominant tenement and servient tenement is crucial, especially for property owners involved in or affected by an easement.

• If you own the dominant tenement, you have certain rights over another person’s property, but you’re also responsible for following the rules set out in the easement agreement, including not interfering with the servient tenement’s use of their property.
• If you own the servient tenement, you must allow the easement holder to use your land in accordance with the agreement, and you may be required to maintain the easement area. However, you still retain ownership of the land.

Roles of Easements

A clear understanding of these roles helps avoid disputes and ensures that both property owners know their rights and responsibilities under the easement.

• Easement Burdening the Land / Easement Benefiting the Land:
  The easement either benefits the dominant tenement or burdens the servient tenement, affecting the respective parcels involved.
• Cross-Easement:
  This allows two properties to use each other’s land in specific ways, using our earlier shared driveway example, ownership of the driveway is split down the middle, and without a cross-easement neither owner would be able to use the driveway without trespassing on their neighbour’s land.
• Easement in Gross:
  This type benefits an individual or organisation, not a specific piece of land. For example, utility companies often have easements in gross to run power lines across private land.
• Right of Way:
  This allows one property owner to pass over another’s land, often to access their own property or a road.
• Implied Easement:
  An easement that is not written in a deed but is implied by the use of the land. For example, if land has been used for access for many years, an implied easement might exist.
• Services Easement (Water, Sewer, Electricity):
  These easements allow utility companies to install, maintain, and repair services on your property. They enable utilities to supply essential services such as water, electricity, and sewerage to buildings and parcels.
• Easement of Support:
  This ensures that a property can provide structural support to an adjacent property (e.g., a wall or foundation). Easements of support are important for the construction and stability of buildings, especially in urban areas where underground support structures and airspace are critical for development.
• Party Wall:
  A party wall is a shared structure, such as a wall between neighbouring properties (e.g., semi-detached houses or terraced homes). Each party has reciprocal rights and responsibilities regarding the maintenance, support, and use of the party wall, which is essential for the construction and ongoing stability of both properties.

Each type of easement comes with specific rights and responsibilities for the property owner. Understanding what each type means for your property is crucial.

How to Know If a Property Has an Easement

Here are a few ways to find out if a property has an easement:

• Title Search and Property Reports:
  Conducting a title search will show any registered easements tied to the property. The title search will also indicate if a parcel of land is subject to an easement, providing details about the legal rights or restrictions attached to that specific parcel.
• Disclosure Forms:
  Since August 2025, Sellers must provide Buyers with a Form 2, which will ensure disclosure of the existence of an easement, however you will still need to conduct a further search to obtain detailed information about easements.
• Plan of Subdivision:
  Look at the subdivision plan, which may show easement locations.
• Water Authority Plans:
  Request a plan image from the water authority or other relevant agencies.
• What Conveyancers Look For:
  Conveyancers will check if an easement is registered and how it affects the parcel. They assess the potential impact on the property, including any legal obligations or restrictions for land subject to the easement.

Easy Checklist for You:

• Conduct a title search
• Review disclosure forms
• Look at the subdivision plan
• Request a water authority plan image
• Speak to your conveyancer for extra clarity

Easement Registration: How Are Easements Officially Recorded?

Registering an easement is essential for protecting both the rights of the landowner and the easement holder. It ensures that the easement is enforceable and remains valid for future property owners.

The Importance of Easement Registration

When an easement is officially registered, it becomes a permanent part of the property’s land title at the Land Titles Office. This makes the easement legally binding, protecting both current and future owners.

Without registration, an easement lacks the protection of public record, leading to potential disputes or confusion down the line.

The Registration Process

The process of registering an easement involves several steps. Here's a breakdown:

Once registered, the easement is included in the land title, ensuring that everyone knows exactly what rights exist over the land.

The Effect of Easement Registration

Once an easement is registered, it becomes a negative easement, meaning it restricts certain uses of the land by the landowner, while granting a benefit to the easement holder. The registered easement is legally enforceable, binding both current and future owners of the property.

Why Registration is Critical

Failing to register an easement can lead to serious legal complications:

• Legal Disputes: Without official documentation, disputes can arise, especially if a landowner tries to block access or interfere with the easement’s use.
• Court Involvement: If an easement is not registered, the court may need to intervene to resolve disputes, balancing the interests of the landowner, easement holder, and public interest.

What Happens After Registration?

Once an easement is registered, the rights and responsibilities are clear:

• For the Landowner: They are restricted from using the land in ways that violate the terms of the easement.
• For the Easement Holder: They have the right to benefit from the easement, such as accessing a shared driveway or maintaining utility lines.

Transferability of Easements:

If the property is sold, the new owner of the servient tenement is legally obligated to continue honouring the easement as specified. This ensures consistency and protects the rights of all parties involved.

Always Check for Registered Easements

In summary, registering an easement is crucial for ensuring that rights are protected and disputes are avoided. It provides a clear, legal record that benefits both landowners and easement holders. If you’re buying, selling, or reviewing property, always check for registered easements and ensure you understand their implications. It’s an essential step in avoiding unexpected legal complications down the track.

Can Easements Be Removed or Changed?

Easements can sometimes be removed or changed, but this generally requires legal advice and negotiation.

• Legal Advice: You must consult with a legal professional who can help you understand your rights and negotiate the removal or modification. Removing or changing an easement generally requires the permission of the parties involved, and sometimes a court may grant or refuse such changes under relevant legislation or acts, such as the Conveyancing Act. Easements are originally granted through legal agreements between parties or by order of the court under specific acts, which set out the process for granting or modifying these rights.

Don’t worry if you’re unsure – you don’t need to handle this process alone. Conveyancers like Zettle are here to guide you.

Do Easements Affect Property Value or Use?

Some easements can restrict renovations or the use of land, especially if they limit where you can build or what you can plant. Maintenance of an easement is generally the responsibility of the benefited party at their own cost, so it’s important to clarify this in any agreement. Some easements may also arise due to minor encroachments, such as overhanging gutters or walls, which grant certain rights to the encroaching owner and regulate access for maintenance.

• Impact on Value: Certain easements may lower buyer appeal, especially if they impose heavy restrictions.
• Future Use: Before you buy, it’s recommended that you consult with a building consultant to understand how the easement may affect any future plans for the property.

Advice for Buyers: Always get an expert’s opinion before signing a contract, as easements can have long-term effects on your property.

Maintenance of Easements – Who Is Responsible?

The responsibility for maintaining easements can vary depending on state regulations and the terms outlined in the easement agreement. In some cases, the property owner may be required to maintain the easement, while in others, it may be the responsibility of the party benefiting from the easement.

Understanding who is responsible for maintenance is essential, as it can affect ongoing costs and obligations. It's important to note that the maintenance responsibilities may be specifically outlined in the easement agreement, so reviewing these details is crucial to avoid any surprises later on.

State-Specific Nuances (NSW, VIC, QLD)

Each state has its own rules when it comes to easement maintenance, and these can vary significantly. Here's a breakdown of the key differences across states:

Easements in NSW:

In New South Wales, easements are registered, and the details must be disclosed to buyers during the contract exchange. It’s vital for buyers to understand how an easement might affect land use, particularly whether there are any maintenance responsibilities or restrictions attached.

Easements in VIC:

Victoria follows a similar approach to NSW, with easements being recorded and disclosed to buyers. Buyers need to understand the full scope of the easement, including whether it restricts development or access. Clarifying these details early on can help avoid potential issues during ownership.

Easements in QLD:

In Queensland, easements are disclosed in the contract (Form 2) and through a title search. Buyers should be aware of what the easement is for and any associated obligations. A dealings search will provide more details, including the easement's purpose and any specific restrictions. This is particularly important, as QLD easements often involve utility infrastructure and can come with ongoing maintenance obligations.

Examples of Typical Easements in Different States

In Queensland, easements are disclosed in the contract (Form 2) and through a title search. Buyers should be aware of what the easement is for and any associated obligations. A dealings search will provide more details, including the easement's purpose and any specific restrictions. This is particularly important, as QLD easements often involve utility infrastructure and can come with ongoing maintenance obligations.

QLD:

In Queensland, most easements relate to water, sewerage, or access. While utility infrastructure like water, sewer, and power lines is typically located within public land or road reserves, private easements may still be necessary in some cases. A dealings search may provide more detailed information on the easement, including whether the property owner or the benefiting party is responsible for its maintenance. However not all public infrastructure is recorded via an easement, and Statutory Authorities will still be entitled to keep and maintain infrastructure on your land (i.e. a sewer or stormwater main running through your property) whether there is an Easement in place or not - this "unregistered Easement" is actually a Statutory Encumbrance over the land.

Understanding your responsibilities, both in terms of maintaining an easement and complying with any restrictions, is crucial. Make sure to consult with a conveyancer or legal professional to clarify the specific details of easements in your state and on your property.

Why It’s Best Not to Guess

When it comes to easements, never assume what they do without thoroughly understanding their terms and implications. Easements can be complex, and assuming their purpose or impact could lead to costly mistakes. Contracts and plans often include easement details, but they can be misleading or unclear without an expert's eye to decipher the fine print.

Why Contracts and Plans Can Be Misleading:

Easement-related details in contracts and subdivision plans might seem straightforward at first glance, but they can omit crucial information or fail to explain the full scope of the easement. What may appear to be a harmless right-of-way, for instance, could come with restrictions that affect your ability to renovate, use, or access certain parts of the property.

That’s where Zettle comes in. Our experienced conveyancers are here to guide you through the complexities of easements. We provide clarity, ensuring you understand exactly what an easement means for your property and your plans. Whether it’s explaining legal jargon or helping you navigate title searches, we’re committed to making sure you’re fully informed before making any decisions.

Don’t risk costly mistakes or misunderstandings; let us clarify the details so you can move forward with confidence.

FAQs

What is an easement on property?

An easement is a legal right allowing someone to use part of someone else’s land for a specific purpose, without owning it.

Is an easement a problem for buyers?

Not always, but it’s important to understand what the easement entails before purchasing a property.

Can easements be removed?

Yes, but it requires legal advice and negotiation to change or remove an easement.

What does easement in gross mean?

An easement in gross benefits a person or organisation, not a piece of land.

How do I find out if a property has an easement?

Conduct a title search, review the property’s disclosure forms, or consult a conveyancer.

Should I still buy a property with an easement?

It depends on the easement’s restrictions. Always seek expert advice before deciding.

What happens if an easement is breached?

Breaching an easement can result in legal consequences, including being forced to remove any obstructions.

How long do easements last?

Easements typically last indefinitely, but this can vary depending on the specific agreement or legal circumstances.