Things You Must Know About Easements Property Law Australia

Do you want to use some other person’s property for a specific purpose and time? Then, you must go for ‘easement’. It will allow you to use that person’s land legally but you have to obey all the applicable easement restrictions. In this article, we discuss all the necessary details you should know about easement regarding the property law in Australia.

What Is Meant By Easement?

‘Easement’ is a legal term that is used to refer to the legal right a person gets to use someone’s real property, for a well-defined purpose and time. Although you can use the land for a definitive purpose, the title to the property will be retained by the landowner.

Easements are usually given to anyone who seeks legal rights. They may be neighbours, private parties, or government agencies. A common example may be if an owner allows someone to use their private path or road for navigation or transport purposes. Standard easements are power lines, public utilities, and also TV cables. And as easements are given for real property, real property law governs them.

What Are The Different Types Of Easements?

Depending on their specific real property laws, there may be different types of easements in different Australian states. Usually, three different types of easements are:

  1. Easement by prescription: This type of easement is also called a prescriptive easement. It is a type of implied easement that one can gain under unfavourable possession. It means, not the property’s original owner but some other person gets the ownership rights for that property. If a person has used the property for a continuous period, without any permission from the owner, a prescriptive easement may be established.
  2. Easement by necessity: This easement is usually given by the law, not by any particular commitment or mutual agreement between the neighbours. The law states that the easement only exists for achieving results. A perfect example is given here. Say, there is a parcel of landlocked land that you cannot access in other ways than travelling over it. In such a case, the law will create an easement by necessity so that the landowner allows access to the property.
  3. Negative easement: It creates a restriction to where the original owner of the property cannot use it in a specific way that may not be legal to do. Negative easements are more like restrictive pacts. A person may launch a negative assessment if he finds that his house’s front view gets blocked by the new construction.

In addition to these three types, other easement types are express grants, affirmative easements, utility easements, preservation easements, easement by estoppel, and public easements.

How Do You Know That Whether Your Property Has An Easement Or Not?

We had mentioned above that various persons and entities may be granted the easements. Now, for example, if you wish to know where the sewer lines or hidden power lines are located, the best way you can find these public utility easements is by contacting the local utility company. But to contact the local land records office is the best way to know whether your property has an easement or not. You can also get the information from the local clerk’s office.

The records of most easements are attached to the property deed owned by you. Another place where you can search for an easement is the city hall. Any easement recorded on your property title will have a reference number. You can use this reference number to locate the original version of the easement document from which you can make a copy. A county clerk may help you in this regard.

Do You Need To Give An Easement?

An easement by necessity is created by law that allows a person to get the rights to access the property. If your neighbour uses your land to access their property using an easement by necessity imposed on your land, then you cannot interfere with their use of your land. Also, some utility companies or cities get easements much before homes are constructed on the piece of land.

A utility company or city is granted the right to use and get access to another person’s property if they want it for providing some public utilities like water, sewer lines, electricity, or gas. These easements are called utility easements. These easements are also attached to property deeds and are passed to every future owner at the time of the property’s sale or transfer.

Do You Need A Lawyer To Solve A Problem With An Easement?

Easements are usually common for real property. As an owner of the land, you will have the full right to use your own property as long as it is valid, where you also need to grant other people rights to use your property. However, finding an easement on your property may be challenging and may intervene in your property usage.

If you are facing any serious issues with a current easement on your property or if you need to complete a process of an easement negotiation, you should seek consultation from qualified and skilled easement property lawyers in your area.

An experienced property lawyer will provide the necessary help from which you can determine what the valid easements are that are present on your property. He or she will also help you to negotiate. And most importantly, a lawyer will represent you at the court hearings, if you get sued over an easement for your property.

How Can You Determine The Amount Of Compensation For The Easement?

One should note that you cannot seek compensation for a number of easements because it is forbidden in the law itself. However, these are the following ways you can follow to determine the amount.

  1. You should specify the scope of the easement when you grant the private easement to another party.
  2. You should negotiate the price for it. But before that, make sure that you have done significant research.
  3. Most critically, you should get the agreement in writing for and there should be signatures of all the parties.

Where To Get Lawyers?

To hire a lawyer, you can get in touch with a farm like Best Property Lawyer who can give you the contacts of some of the Property lawyers in Perth.

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    27 Aug 2019
    Tomas Mandy

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    1. author
      27 Aug 2019
      Britney Millner

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    27 Aug 2019
    Simon Downey

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