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There’s An Easement On My Title!

September 2020

When buying a property, one of the things you need to know is whether there are any easements that may affect the title to the property. So, what is an easement?

An easement is a legal right created by an instrument registered on the title granting another landowner or perhaps a utility company the right to use your land (or part of your land) in some particular way, or for a specified purpose. Examples of the types of easement that might be registered on the title include: –

  • right-of-way
  • Right to convey water, electricity, telecommunications
  • a right to drain water or sewage
  • a party wall (used where there are adjoining dwellings that share a common wall)

 

An easement is usually granted on a permanent basis (although there may be the odd occasion where the easement is granted for a specified period), and the easement may be granted over all of the land in your title, or over a specific area. In most cases, the easement will be granted over a specific area. That area would be defined in an easement plan, which would be prepared by a surveyor and it would show the area on the land over which the easement was being created, as well as setting out what type of easement it is.

 

Once an easement is registered on the title it becomes a “registered easement” which means any future owners of that land will know that there is an easement affecting that title. The title to the land which is obtaining the use or benefit of the easement is referred to as the “benefiting land”, and the title to the land which is providing the easement is referred to as the “burdened land”. There are standard terms and conditions which apply to all easements. However, it is possible to vary, substitute, or add to these standard terms and conditions, depending on the needs of the land in question.

 

If you are looking at buying a property it is very important that you get us to check the title, and if there are any easements that affect the title (either as a benefit or a burden) it is important that you sight a copy of those easements and check the terms and conditions of it carefully, so that you are fully aware of what your obligations or rights are.

 

It is possible to vary an existing registered easement, or even have it surrendered if they have become redundant. However, that requires the consent of all the landowners who are affected by that easement. In some cases, it also requires the consent of the Local or Territorial Authority who may have required the creation of those easements as a condition of the original subdivision.

 

Before purchasing a property, it is important that you obtain legal advice to ensure that you are aware of any easements that may affect the land and what the terms of those easements mean for you as the prospective owner of the land.