Easements

A property owner‘s home is their castle. There are many ways, however, in which the rule of your domain can be reined in. Here, we discuss easements and what the implications are for you as a landowner granting an easement over your property.

An easement is the grant to another person of the right to use your land. Such right of use is usually granted to an adjoining property owner and is limited to a certain area, and the purpose for which it can be used is rigorously defined.

Common examples of easements include the grant of access over your land, being a ‘right of way’, and the right to bring water over your land or drain it away, being the ‘right to convey’ or ‘right to drain water’. Other common easements create rights to cross over your land for things such as electricity, telecommunication cables, and gas or sewage pipes.

As your land is your kingdom, the granting of an easement over your land to another must be recorded in writing, and is registered on both your and their land titles. When you purchase property, as part of the legal process, we will review any easements on your land and discuss with you their effect on your property.

An easement is in perpetuity

It’s important to understand that an easement is granted in perpetuity or, in other words, forever. Once registered on the title to your land, the easement runs with and binds each successive owner to your land.

It’s common to find easements that date back over a century and which are still used daily for the purpose for which they have been granted.

Another common form of easement is for the right to use your land by someone other than an adjoining property owner, such as a local council, power or other utility company. This is an ‘easement in gross’ and still binds and runs with your property in perpetuity.

Issues around easements

Issues that arise with easements are what rights of use are – or aren’t – given to the respective parties, be it the affected owner’s land called the ‘servient tenement’, or the ‘dominant tenement’ which is the landowner or party who holds the benefit. These rights are contained in the written definition of the easement which is registered on the land.

Commonly, requests for new easements are made by power companies seeking the right to run power lines over or under rural land. These easements allow for power lines and supporting infrastructure to be installed and maintained, and are frequently of no direct benefit to the affected landowner.

If you’re considering granting such an easement, it’s essential to understand what is being lost and if anything is being given or compensated for that loss. It’s also crucial to understand what rights are being given for the use of the land. In some electricity company easements, there’s the right for the company to upgrade the proposed power lines, at some future date, to heavy grade commercial supply lines if they desire. This is effectively creating a future-proofed supply corridor for the electricity company over the future landowner’s property. Any rights for the use of the land once granted, remain unchecked, binding the land forever.

An easement is a binding commercial contract which, once entered, is enforceable against the current and future property owners. When being asked to grant an easement, it’s important that you seek advice to fully understand the implications and effects it will have on you and your land, now and in the future.

Posted: Tue 12 Jul 2016

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