WHAT IS AN EASEMENT?
An Easement is a right to use a part of land belonging to someone else, for a specific purpose. Easements are usually but not always registered on your Certificate of Title. If the easement is registered, the details about the nature of the easement and where it’s located will be shown on the Certificate of Title or Plan.
For example, “if you own property and SA Water has a sewer pipe positioned under your land, it is likely that they will have a registered easement on your title that will guarantee them access to the pipe in the event of any maintenance, repair or replacement being required” – Land Services SA
WHAT TYPES OF EASEMENTS ARE THERE?
There are two types of easements, Private Easements and Public Easements. A Private easement exists between two private property owners known as the Grantor (burdened party) and the Grantee (benefiting party). Common types of private easements are rights of way and party walls. Public easements are for supply of utilities such as gas, electricity and water. SA Water, Councils and SA Power Networks have pipes, drains, and cables on private land. The easement grants these authorities the right to access your land to repair, maintain or replace these services.
WHAT IS THE MEANING OF FREE AND UNRESTRICTED RIGHT OF WAY?
“This terminology is set out on numerous titles and refers to the short form of describing the ‘right of way’ set forth in Schedule 5 of the Real Property Act 1886. Schedule 5 contains the following description – A full and free right and liberty to and for the proprietor or proprietors for the time being taking or deriving title under or through this instrument, so long as he or they shall remain such proprietors, and to and for his and their tenants, servants, agents, workmen, and visitors, to pass and repass for all purposes, and either with or without horses or other animals, cart, or other carriages” – Land Services SA
A right of way allows an individual access over a specific part of land for a particular purpose. For example, a landowner may need to use a walkway or driveway through their neighbour’s property to access their home. It is important to speak to your conveyancer before purchasing a property which has an easement registered on the title, so that you fully understand your rights/obligations.
WHAT ARE PARTY WALL RIGHTS?
Party Wall Rights occur where there is a shared wall between two or more properties. For example, maisonettes and townhouses would have a common wall, therefore a party wall easement would be registered on the title. The easement would prevent an owner from demolishing the common wall, as it would affect the adjacent owner.
HOW DOES AN EASEMENT AFFECT MY PROPERTY?
If there is an easement registered on your Certificate of Title, it is important to understand what it is for and where it is located as there may be restrictions on how you can use the part of land affected by the easement. 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 make enquiries into the nature of the easement prior to undertaking any major building works on their property.
HOW DO YOU KNOW WHERE AN EASEMENT OR RIGHT OF WAY IS?
The easement may be described on the diagram that is 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, in the case of extensive easements, it may be necessary to engage a Surveyor who can identify and locate the easement.
WHO OWNS AN EASEMENT OR RIGHT OF WAY?
The Grantor (burdened party) is the registered proprietor of the land and has only given up certain rights on that part of land affected by the easement. The Grantee (benefiting party) is permitted access to an easement and holds certain rights regarding usage of the property described in the easement document but does not own the land.
CAN AN EASEMENT BE REMOVED FROM MY CERTIFICATE OF TITLE?
Yes, an easement can be varied or extinguished if the Grantor (burdened party) and the Grantee (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 ISN’T REGISTERED ON MY CERTIFICATE OF TITLE?
An easement which is 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 electricity may be delivered by poles and wires or underground. If the supply is underground, always Dial Before You Dig by phoning 1100 to confirm where the cables are located.
WILL BUILDING APPROVAL FROM MY COUNCIL INCLUDE INFORMATION ABOUT EASEMENTS?
The council should take into account any existing easements or additional easements required by the proposed development. Landowners (and their agents) should carefully consider the implications of easements before they build or apply for development approval by checking their title to the land.
For further information please contact our office or Land Services SA.
The team at McKay Business Services are all members of the AICSA and are proud Adelaide conveyancers