What is a Property Easement?

A property easement may be briefly defined as a right to use a section of land, not owned by you, in a specified way.

Common reasons for granting an easement over an individual’s property may include an access right of way, drainage, supply of utilities and sewerage.

For a validly enforceable easement to be created, the easement instrument must be registered in accordance with section 82 of the Land Title Act 1994.

This includes stating the nature of the easement and its terms, the land benefitted, and the land burdened by the easement, as well as additional requirements if it is a public utility easement or a high-density development easement.

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Right of Way Easements

Easements most commonly exist within neighbouring properties.

This grants one lot owner (referred to as the “dominant tenement”) access to a lot owned by another (the “servient tenement”).

This access is however restricted for the use specified within the registered instrument.

An example of this may be ‘general access for pedestrians and motor vehicles’, this would be read generally as restricting excessive use and on-site manoeuvring.

An easement does not however grant the right of possession for the section of land specified.

If the dominant tenement begins to utilise the easement in an inappropriate manner, not complying with the terms of the easement, the servient tenement may prevent their neighbour from doing so.

The same goes both ways, if you are the owner of a benefitted lot, and the burdened lot interferes with your right of use, there may be remedies available.

Modification and Extinguishment of Easements

A large portion of property law in Queensland is governed by the Property Law Act 1974 (Qld) (PLA). Section 181 of the PLA grants the court power to modify or extinguish an easement, however a number of grounds must be satisfied, including but not limited to:

The existence of the easement interferes with the servient tenement’s reasonable use of their property; or
The existence of the easement is contrary to public interest; or
Changes in circumstances surrounding the properties makes the easement unnecessary; or
The modification or extinguishment proposed will not majorly impact the dominant tenement’s interest.

Property Easement in Gross

An easement in gross is best described as an easement not benefitted by a neighbour property.

Most commonly they are benefitted by public services such as the local council, Unity Water or Energex.

An authority with a registered easement over your land has a right to access the easement to repair and maintain any equipment situated on your property.

A servient tenement to an easement in gross cannot interfere with, or restrict access to the registered easement.

This may cause action to be taken against you and the authority will have remedies available to them.

Property Easement Remedies – Abatement

An abatement is the right to remove an obstruction interfering with a registered easement.

For example, if a servient tenement erected a fence to interfere with the dominant tenement’s access and registered use of that easement, the dominant tenement may seek to exercise an abatement.

However, this is discouraged by the courts and should only be used in extreme circumstances.

In order for the dominant tenement to exercise this power, they must ensure that the force used is reasonable, unlikely to breach the peace between the servient tenement, and is no injury to the public.

Property Easement Remedies – Legal Action

Legal action may be commenced by the dominant tenement if they are prevented from accessing the registered easement.

This course of action may seek to recover damages, sue for nuisance, or seek an injunction against the servient tenement to prevent further interference.

How do I know if my property or one I want to purchase is subject to a property easement?

Generally, all easements should be registered at the Land Titles Register.

A title search on your property should identify if there is an easement and whether it burdens or benefits your lot.

Also, most sale contracts must disclose easements, but this is not always the case, and it is advisable to have a contract reviewed for this.

Unfortunately, there is quite a large quantity of case law for unregistered easements, these are not easily identifiable.

If you are thinking of selling, purchasing, or owning property, it may be worthwhile to check for unregistered easement and obtain legal advice which can be done through our website.