An easement is a section of land registered on your property, which gives someone else the right to use the land for a certain purpose, despite not being the land owner. The simplest form of an easement is a shared driveway. Someone owns the land the driveway is on, but someone else is able to use it daily, without it being considered trespassing. However if you are the land owner you can bar anyone other than the person on the property title from holding easement on your land.
There are other examples of easements that would not show up on your property title. These are statutory easements, they usually include power lines, telephone lines and drainage. The piece of land affected by the easement is known as the ‘servient estate’. The person who benefits from the easement is known as the ‘dominant tenement’ and the person whose land is subject to the easement is known as the ‘servient tenement’.
There are two main type of easements, positive easements and negative easements. Both categories illicit what can and cannot on be done on the land during the drawing up of the easement. A positive easement is the scenario where the dominant tenement needs a benefit from the servient tenement (think of the shared driveway). Once this easement is created the person who requires the benefit can do things they would normally do (i.e. drive on driveway) without it being considered trespassing. Negative easements stop the servient tenement from doing usually permissible things upon their estate. Easements can be created in numerous ways. In some cases if a person uses a neighbours property for over 20 years, despite the use technically being trespassing the whole time, they create an ‘easement by prescription’. However the land that has been used all that time must meet the requirements of an easement to create an easement by prescription.
Before you decide whether you need an easement you should ask yourself the following questions:
- Will a right to use the land in common with others suffice or is there a need for exclusive possession?
- Is the right to use the land to be enjoyed by whomever is the owner of the benefiting land at any given point in time or is the use right intended to be personal to the State or an individual
- Are the following essential characteristics of an easement present?
There must be a dominant and a servient tenement – The land that benefits from the easement is the dominant tenement and the land subjected to the easement is the servient tenement. The right must accommodate the dominant tenement – The right claimed as an easement must be reasonably necessary for the better enjoyment of the dominant tenement and the two parcels of land affected by the easement arrangement must be contiguous. Both tenements must be owned or occupied by different persons. The right must be of a kind capable of forming the subject matter of a grant – The right must be sufficiently precise and certain and not confer a right to exclusive possession.
A certified plan for an easement can be lodged at Land Use Victoria, upon the Registrar of Titles registration of that plan. A planning permit can normally be obtained under the relevant planning scheme. Easements are very important, and therefore you need to be aware of them and know how they may affect your land and your property. With so many years of experience in property law, Wollerman Shacklock are more than qualified to assist you with any easement queries you may have.