How do easements affect a property title?

Mar 26, 2023

An easement is an encumbrance (restriction) on land which gives someone the right to use land belonging to someone else for a specific purpose.

An easement typically encumbers one property (the servient tenement) for the benefit of another property (the dominant tenement).

The most common types of easements that we see are:

  1. Service and utility easements – granting authorities such as electricity providers and water authorities with the right to use and access the land, usually where there is infrastructure located in, on or under the land;
  2. Right of carriageway – this allows someone to pass through the land to access another parcel of land; and
  3. Party wall easements – where a property shares a common wall with the neighbouring land.

Easements can be created pursuant to a planning permit, on a plan of subdivision or by agreement.

Easements are usually registered as an encumbrance on the certificate of title of the servient land. However, there can also be unregistered easements, which will typically be documented in an agreement between the parties affected.

In Victoria, easements must be disclosed in a vendor’s statement when a property is sold. Purchasers should ensure that they obtain advice from their legal advisors and building consultants as to how an easement will affect the way they intend on using the land (for example, many easements must not be built over).

Where an easement is no longer required, it can be extinguished (removed) in various ways including by agreement, by abandonment and by merger of the servient and dominant tenement.

Easements are just one type of encumbrance that can affect a property title and they should always be properly understood by the owners of property that are affected by them.