In a nutshell, an easement is defined as ‘the right to cross or otherwise use a portion of someone else’s land’. While that seems simple enough in theory, it can actually be pretty tricky when you consider all the real-life implications when put into practice.
The section of land that is recognised as an easement will form a part of your land block, and it does belong to you. However, although you are technically the owner of this easement, other people may have the right to access it.
Who might these people be? Well, generally speaking, the parties that are allowed access to your easement will have been granted that right for important reasons. Most commonly, your local council will give utility companies the right to maintain or repair the relevant services found within your easement.
Depending on the location of your block of land, or where your house sits on a block of land, your easement may also be accessed by other property owners to access essential services, such as electricity or water.
There’s also the ‘right of carriageway’ whereby a neighbour is allowed road access to their own property. For example, a shared driveway in a subdivided block is then technically an easement under this definition.
It’s important to note that anyone’s access to your easement is subject to few clear rules - easements are only accessible to a specific person (or company) for a specific purpose. Random people can’t be granted access to your easement just to throw a party, for example!
It’s fairly common for most properties to have what is called ‘statutory easements’. These easements aren’t registered on your property title specifically, and are generally there to ensure service technicians from utility companies have the right to do repairs or maintenance works on your property.
There’s also the concept of ‘prescriptive easement’, whereby an easement comes into existence over time. For example, if a neighbour has been using part of your land as a right of way for a few decades, they can argue that they have a right to continue doing just that - even when it’s not explicitly stated on your title.
It’s really important to be aware of easements when you’re thinking of purchasing a property, as it can impact you in different ways. Keep reading to learn more about easements, including the different types of easements, why easements are needed, and the benefits of easements. We’ll also answer a few common questions regarding easements, such as whether you’re allowed to build on an easement, or whether an easement might devalue your property.
Types of Easements
Easements are divided into two main categories - positive easements and negative easements. They’re different in the way that they impact your property and lifestyle.
- Positive Easement
A positive easement grants access to someone to enter your property. This is usually the case when you need to share a driveway with a neighbour. If your neighbour is the one who needs to drive through your driveway in order to access theirs, then you are the servient tenement (because access to your land is benefiting the other party), and your neighbour is the dominant tenement (because they benefit from using your land). Using this example, a positive easement is so defined because it hinges on granting access.
- Negative Easement
A negative easement blocks a servient tenement from doing something on their land that may otherwise have been acceptable in any other circumstance. An example of negative easement is not allowing a neighbour to build an extra tall wall that blocks your view of surrounding nature. This type of easement is different from positive easement, because instead of granting access, it is about blocking or restricting access.
There are also other, more specific types of easements you need to be aware of under these two general categories of easements.
- Right-of-way easement (also known as easement of way) – As we mentioned in the previous section, this is where neighbours are allowed to cross your land in order to access their property.
- Easement for services – This type of easement allows for utility companies to do repairs or maintenance works for essential services such as electrical and water.
- Easements of support – This type of easement is very similar to ‘easements of services’ but is specifically related to activities that require excavations. This may be to establish, maintain, or repair drainage pipes, natural gas lines, or telephone lines.
- Easements of light and air – While this easement sounds almost like science fiction, it’s very much relevant to us here on planet Earth! These types of easements generally fall under the category of negative easements, as it restricts the construction of walls or other buildings that may block your access to light and air, also known as the view from your property.
- Cross-easement – This type of easement occurs when both you and your neighbour have a right to use each other’s property in the same way, such as a shared wall between two terrace homes.
- Drainage and sewerage easements – As the name suggests, a drainage easement to drain water will allow sewerage utilities companies to access your property for maintenance and repairs.
Why are Easements needed?
Easements are an important thing to note when it comes to property ownership, for many different reasons. Whether you own a rural, suburban, or city property, easements are an inescapable necessity.
Here are a few reasons why easements are needed:
- It allows for a strict definition of who is allowed access to your property and exactly how they are allowed to use your easement.
- It allows the parties using your property a right to safely access their home or do their job, without being liable for trespass.
- If your property has an easement related to utilities services, it gives the relevant companies the right to undertake urgent and important inspection, maintenance, and repair works.
- An easement will allow you to have a clear idea of the limitations of your property, as they can impact your building and renovation plans. This is because you are generally not allowed to build a structure over an easement, and in some cases, you’ll be legally required to remove a structure built upon an easement.
So if you’re planning on buying real estate, or building on your block of land, it is important to understand easements and identify any easements that exist on the property. It’s also vital to be clear on the easements that may affect you before undertaking any renovations or knock down rebuilds on your property.
What are the benefits of Easements?
Aside from the sheer necessity of a property easement as outlined in the previous section, there are a few benefits of having easements.
Here are just a few advantages of easements:
- In the case of negative easements, you’ll be able to protect your property value and general enjoyment of your property if neighbours are disallowed from restricting your views by building on an easement.
- You’ll avoid potential conflicts with neighbours when you have a clear idea of the rights to access or utilise specific sections of your respective properties.
- You can rest easy knowing you have the right to access to a right-of-way easement or cross-easement, as you won’t be legally liable for trespass.
- In the case of emergencies or urgent works, easements that provide access to service technicians allow for immediate repairs. In some cases, damage to utilities can become a huge financial liability for property owners, so this is doubly beneficial!
- If it happens that you and your neighbours get into a legal tussle over use of either (or both) properties, clearly defined easements on your property can provide a lot of clarity for the case.
- If you’re interested in a landlocked piece of property, easements are literally the only way you’d be able to access it!
How is an Easement created?
Well, now you have a clear idea of the different types of easements, as well as the different ways they can impact your property. But how are easements created?
- Express Easement: When an easement is granted in a document, it is called an Express Easement. It may also be included in a property agreement.
- Implied Easements: An implied easement is one that is stated by statute or common law. In this case, the easement is implied, instead of being explicitly stated.
- Private Easement: A private easement is agreed upon by the owners of neighbouring properties that share a block of land.
- Prescriptive Easement: We mentioned this type of easement before, where an easement comes into existence due to use over time - specifically, a minimum of twenty years. A prescriptive easement is technically a type of implied easement.
- Easement by Necessity: As the name suggests, this type of easement is granted due to necessity. The example of access to a landlocked property, mentioned in the previous section, is a good example of this.
Does an Easement devalue a property?
Whether or not an easement impacts your property’s value depends on the type of easement, the easement guidelines, and exactly how your land is being used. For most properties, easements do not impact your property’s value. However, in some specific cases, they can devalue your property.
For example, since easements can limit your ability to build structures on portions of your block of land, this may affect your builds or renovations. If you are planning to build a large property, or a granny flat, or even a knockdown rebuild project, the location and size of an easement may very well create some limitations and may impact your overall cost. This is in addition to other challenges that your block of land your property may have, like slopes.
If you’re planning to sell your land or property, its value may be impacted by structures placed by utility companies. This might include visible structures, wires, pipes, drainage, etc, especially if they impact your property’s aesthetics or prevent potential buyers from developing the property themselves.
There’s also the fact that some buyers aren’t comfortable with the idea of other people using their land, particularly when it comes to ‘right of way’ easements. Potential owners who aren’t comfortable with sharing a driveway will see your property as lower value because of this.
On the flip side, some easement holders agree to pay fees to property owners to access an easement. This side income may well be perceived as an added value to potential buyers!
It’s also worth noting that in large developments and housing estates, particularly in newer suburbs, all properties have the exact same easement attached. These easements are usually appointed to grant access to utilities companies. In this case, this won’t impact your property value since everyone will be affected in the exact same way.
Can I build or landscape over an Easement?
If you find yourself asking “Can I landscape over an easement?” or have any doubts about whether you can build over easement, we’re sorry to say that there’s no one correct answer! It depends on the types of easements you have on your real estate, the easement holder (or holders) that you need to consult with, and the specific easement guidelines that are relevant to your specific block of land.
It’s worth remembering that while certain people can access your easement, it is still your property. So technically, you can use easements any way you like, with permission from the easement holder(s). Once you receive permission, you can build a fence, or plant bushes and gardens.
However, if you decide to do that, you’ll have to take the risk that those who have a right to access your easements - particularly utilities services - may remove or damage your structures or landscaping when performing their jobs.
It’s also worth noting that some trees and plants can damage pipes within easements, so take careful consideration if this is something you’d like to do.
We can help you with building the home of your dreams, complete with landscaping and pool!
Easements can be completely different from property to property, so it’s vital to know the exact ways your property is impacted by any existing easements. At Wisdom Homes, we take your easements into account when building your home, creating your landscaping, and even constructing your pool.
We take the headache out of building your dream home by worrying about the technicalities for you! All you have to worry about is choosing the home design of your dreams, and we’ll take care of the rest.
Have a chat to the experts on our team to find out if Wisdom Homes is the right fit for you!