If you have ever considered buying property, you may have heard the term “easement”.
An easement is the right of the owner of a piece of land (known as the “dominant land”) to use another person’s land (known as the “servient land”) in some specified way. Alternatively, sometimes easements are created “in gross” and in this case there is no dominant land (because the use is not a right tied to a specific parcel of land), just servient land. Easements in gross allow a person or organisation to use the servient land, even though the user does not own any neighbouring land. For example, an easement in gross may be granted to a lines company, to allow them to install an electricity network on, under or over servient land.
There are many different types of easements. Common examples include:
- Right of way – this may be general or limited, and could be vehicular, or only pedestrian
- Right to convey water, electricity, telecommunications, etc
- Right to drain water or sewage
- Party wall
- Eaves encroachment – where, for example, the eaves of a dwelling extend over a neighbouring property
Before buying property, it is crucial to search the title to ensure you are happy with the terms of any easements. These can vary greatly and some terms are not specifically stated, but are implied by legislation. It is important to obtain specific legal advice.
For example, there are various ways in which costs relating to vehicular rights of way can be shared. Some right of way easements provide that costs will be shared equally between all users. Others provide that each owner will make a reasonable contribution to costs. The question of what is “reasonable” will depend on the circumstances – it could be based on the length of the right of way used by each user, or the number of vehicles each user drives down the right of way, or the weight of those vehicles. Other important aspects to consider are who pays for repairs when the damage was caused by one particular user, and what restrictions apply to the easement.
It is also very important to check that all the easements you need are actually in place. For example, it is possible that a driveway the vendors have been using for years has not been legally registered as a right of way easement. We also occasionally find that vital easements to convey water or electricity over a neighbour’s property have not been registered.
If an existing easement is not suitable, it is possible for the parties to vary or remove it by agreement, or, ultimately, with the assistance of the court. You can never assume that your neighbour will be happy to give up any existing benefits.
If there is a dispute over an easement, the court can help you to resolve it by issuing an injunction or a declaration, or awarding damages, or even modifying or extinguishing an easement. However the cost (in both time and money) of taking a dispute to court can be prohibitive.
It is far better to thoroughly check the title of a property before committing to a purchase, to ensure that you understand what your rights and obligations will be. Your lawyer can guide you through this process.
Published: 13 November 2013