One of the main considerations that should be taken into account with property transactions is whether easements are attached to the property.
An easement that attaches to a property provides a right to another person to access that easement. A common easement that is on land, is a storm water drain. This could run down the side of the property or at the rear.
Easements are created by statue, express grant or reservation; implied grant or reservation and prescription. Generally, as most land is Torrens land, an easement is created through the lodgement and registration of an approved form with the land registry of the state. Once the easement is registered, the land that is burdened with the easement will automatically transfer between owners of the property. So a new purchaser of a property, will be burdened by the easement that is created or passed on by the former owner. Now here is an interesting point, where two property owners create an easement of right of use in a written form and agreed between the parties, such arrangement may be binding between the two parties, even where the easement has not been registered with the titles office.
Where easements are in affect, there will always be one property being burdened by the easement and the other property benefiting from the easement. There are special terms used for land that is benefitted, which is called the ‘dominant tenement’; where the land that has the burden of the easement, it is called the ‘servient tenement’.
Where a dispute arises as to whether an easement actually impacts on the land or property, the Supreme Court will determine that conclusion.
Easements can include a right to access land, a carriage way, the use of a recreational area, a right to place a utility pole or drain, or overhead cables on the land, right to light, or receive air, or water flow.
Where there is a right of access to an easement, and the dominant tenement is affected, that party may raise a claim of nuisance or apply for an injunction, or claim damages if there is a “real and substantial” interference with their legal rights to the use of that easement. Abatement is another avenue as a remedy for interference with an easement of right but not commonly used.
Easements may be varied, released and cancelled. In each state of Australia there are specific administrative steps that must be followed. As example, in Victoria an easement may be removed or modified under sections 73 and 73A of the Transfer of Land Act 1958.
The law of easements that impacts on property is complex, and this area of law is frequently litigated, as an easement is a right of use and no person wants to lose their right.
The prudent step that a purchaser should always take when they buy property, is to carefully review the title, plan of subdivision, land and water information statements, in order to know what rights are actually being purchased, and how they will impact on the use that you have intended for the property.
If legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799 www.legalau.com
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