Part 3. Buying a House: What Is An Easement and How Does It Affect You?

What Is An Easement? How It Affects You & What It Means For Your Property?

When buying a property, there are all sorts of things to weigh up and consider—does the property have enough bedrooms, bathrooms and amenity; is the backyard large enough— and does it have an easement? If you haven't heard about easements until now, it's helpful to read up on them so that when you have a Contract of Sale assessed, you will understand what the heck of expressions like easements and overhangs mean.?

Having an Easement means having the right to use a part of the land parcel that belongs to someone else. All legal easements must be displayed on your property title. In most cases; easements are registered on your Certificate of Title. Provided the easement is registered, you will find facts about the type of easement and its location on the property's Certificate of Title or Plan.?

Easements come in all shapes and sizes, and categories. If your land is affected by an easement, you are generally restricted in what you can do. This often means you can be prevented from building in or over the land in the area. So, what should you do?

Firstly, it is essential to determine the exact purpose of the easement.??

An example of a registered easement on your title is when you own the property, but the local Council has a sewer pipe running under your land; they will likely register it as an easement to guarantee them ease of access should there be a need for any maintenance, repair or replacement. During land subdivisions, private land might require an easement for several reasons.

These may include:

? Provision of access and protective measures for Council infrastructures such as stormwater drains and sewer lines.

?? Provision for vehicle access to properties that do not have road frontage

?? Preventive measures for buildings from being constructed over a certain height; and

?? Protection for a common wall between buildings on separate titles.

A title search will determine if an easement affects your property.?

Misleading

Sometimes, the infrastructure location can mislead the easement's purpose and give a mistaken impression of what the easement is protecting. For instance, if your property contains a sewer line and storm water drainage inside the easement boundary. This gives a false impression that the easement protects the sewer line, so you might not consider other protection measures for your infrastructure. However, complying with all legislative requirements means protecting the infrastructure even when an easement is on-site.?

You must obtain approval from the easement holder if you wish to build or do anything that may go against the easement rules. Your local Council will be the easement holder in most cases.

Types of Easements

Private Easements and Public Easements are the most common types of easements. The private easement between two private property owners is known as the burdened party - the Grantor and the benefiting party, the Grantee.

?Private easements are most commonly used for party walls and rights of way. Public easements are typically for the supply of electricity, water and gas. Power Networks, Water and Councils, have existing networks of drains, cables and pipes on private land. The easement grants allow these authorities to access the land to maintain, repair or replace these services.

Who Owns An Easement Or Right Of Way?

The burdened party - The Grantor, is the registered proprietor of the land and has only given up certain rights on that part of the land affected by the easement. The benefiting party - Grantee is permitted access to an easement and holds certain rights regarding the use of the property described in the easement document. They do not, however, own the land.

What Are The Party Wall Rights?

Party Wall Rights occur where a shared wall exists between two or more adjoining properties - terraces and townhouses have a common wall. Therefore a registered easement would exist on the title of the party wall. The easement will prevent adverse effects for the adjacent owner if the neighbour decides to demolish the shared wall.?

How Does An Easement Affect Me?

Suppose your Certificate of Title has an easement registered. In that case, it is your responsibility to understand how this will affect you and whether there are restrictions on how you can use the section of the land affected by the easement. Start by finding out where it is located and what it is for. Usually, building over an easement isn't allowed, but you may be able to get permission from the authority controlling the easement. All landowners should inquire about the easement's nature before undertaking any major building works on their property.

Where is the Easement or Right of Way?

The easement may be described on the diagram attached to your title, or a plan may be lodged with the Lands Titles Office that will provide distances to locate the easement. A landowner can contact the holder of the easement for any relevant information. Alternatively, it may be necessary to engage a Surveyor who can identify and locate the easement in the case of extensive easements.

Can I remove an Easement from my certificate title?

An easement can be varied or extinguished if the burdened party and the benefiting party agree. A registered conveyancer or solicitor will need to be engaged to prepare documentation and lodge with the Lands Titles Office.

What Easement is not registered on my property's Certificate of Title

An easement not shown on the Certificate of Title is the Statutory Easement to SA Power Networks. All land with an electricity supply from the grid is subject to one of these easements so that any underground network of cables and wires or poles may deliver electricity.?

Where do I find information about easements?

The implications of easements must be carefully considered before building or applying for development approval. The Council should consider any existing easements or additional easements required by the proposed development. This is possible by checking the registered title to the land.

Part 3. Buying a House: What is a Covenant and How Does It Affect You?

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