In simple terms, an easement is a right which attaches to land to utilise other land in a particular way. If there is a registered easement on a property, it will be noted as an encumbrance on the title search of that property. Importantly, all future owners of the “burdened” lot (the lot which is subject to the easement) are bound by the easement, unless it is surrendered or extinguished.

Rights under an Easement

Rights that extend from an easement include:

• persons, other than the registered owner of the land, being granted access to the land, for example to pass through the land, without requiring permission of the owner; and
• persons, other than the registered owner of the land being afforded the right to use part of that land for a specific purpose.

If a property you intend to purchase is subject to one or more easements, it is important you are aware of the nature of the easement/s and exactly what the purpose of the easement is, and the rights which attach to them. Information around a registered easement can be obtained via search by your lawyer or conveyancer from Titles Office Queensland. This search should be ordered and reviewed before a contract is signed, or as soon as practicable after your contract is signed.

If you are aware of any unregistered easements and are trying to sell your property, the REIQ Contract of Sale obligates a Seller to disclose easements of this nature to the purchaser of the property. Failure to do disclose where you have knowledge of unregistered easements will entitle a purchaser to terminate the Contract.

Types of Easements

There are various types of easements, the most common being:

Easements for right of access/right of way;

• For example, to allow residents of neighbouring properties to pass through your land to access their home.

Easements for services (such as for drainage, sewerage or electricity transmission);

• It is important you are aware of the location/s of any easements for services as these cannot be built over if you wish to demolish, renovate or expand your home.

Easements of support of buildings;

• These are common where buildings have a shared/common wall.

Easements of light and air

• This type of easement may restrict the construction of walls or buildings in favour of another party's access to light and air. Practically, this would apply where views are sought to be protected.

Importantly, the right granted under an easement must not be vague, imprecise or indefinite and must be for a matter which is capable of being the subject of a grant.

Removal of an Easement

If you wish to remove (i.e. surrender or extinguish) an easement on your property, agreement must be reached between the grantee (the person who has been granted the easement) and the grantor (the owner of the land being “burdened” by the easement). Documents will need to be prepared by the parties’ lawyers and lodged with Titles Office Queensland (or other land registry dependent on which state you are in).

If an easement is no longer required, but parties cannot reach agreement for its removal, then an application can be made to the Court for it to be removed from the title of the property. This removal is allowed for under section 181 of the Property Law Act 1974 (Qld).

If you require any assistance identifying whether your property, or a property you intend to purchase is subject to an easement or you wish to discuss an easement matter more generally, please do not hesitate to send us an email or call 07 3220 1144. We are here to help.