Setting the law straight on easements

What is an easement?

An easement is a set of rights to use a section of land in a particular way.

It gives someone else the right to use the land for a specific purpose even though they are not the landowner. Easements over land may be granted for a specific purpose, including driveways for access to blocks that don’t have suitable access, drainage, sewerage, or supply of water or gas.

What is a right of way?

A right of way is an easement that allows another person to travel or pass through your land. The most common form of right of way easement is a road or path through your land. The right of way easement road is meant to benefit a particular person or another parcel of land not owned by you. Right of way easements extend reasonable use for travel through others’ lands to holders of the easements.

Creation of Easements

Easements can be created as a result of an agreement between the dominant and servient owner. The parties will determine the rights and obligations they and all subsequent owners will have with respect to the easement.

Is an easement permanent?

It is generally assumed easements are created to last forever, unless otherwise indicated in the document creating the easement. Despite this, an individual granting an easement should avoid any potential legal or interpretive problem by expressly providing that the easement is permanent. Although permanent easements are standard, they can be broken. Easements of limited duration are generally used to provide temporary access until completion of construction work.

Can you build on an easement?

Normally an easement will not prevent you from building over or under it. For example, if there is an access way through your property, you probably will be able to put a sewer under it or a structure over it.

Whether or not you can build over it will generally depend on whether your application causes substantial interference to someone else’s rights.

To find out what your rights are in relation to easements, or if you have a situation where access to your property is an issue, please contact our Property & Commercial Law team in Bendigo on 5434 6666 or Castlemaine on 5472 1588.