What is a Property Easement?

A property easement grants the right to owners of certain lots to use part of someone else’s land for a specific purpose, without awarding possession. Without an easement an individual can be made liable for trespass or causing a private nuisance. As such, easements are created and registered on title to protect people from unlawful or unreasonable interference.

The land which benefits from the easement is known as the dominant tenement whilst the land that is burdened by the easement is known as the servient tenement.

Positive and Negative Property Easements

Easements are broadly characterised as either positive or negative.

A positive easement allows one party to benefit from the access or modification of another party’s land in a positive manner.

A negative easement restricts access or modification within the servient tenement.

Types of Property Easements

Different types of easements exist to simultaneously benefit the dominant tenement and protect the property rights of the servient tenement:

1. A right of carriageway easement permits an individual to access their property through another person’s property. This is a positive easement in which the shared use of the servient tenement’s driveway ensures that the dominant tenement’s property is not landlocked and inaccessible.
2. Service easements permit the use of one person’s property to erect, maintain or repair services for another person’s property. This is a positive easement which allows for power lines, telephone lines, water pipes or sewage systems to be built on a servient tenement to ensure that the dominant tenement has access to these services.
3. An easement of light and air preserves a property’s access to light, air or view. This is a negative easement which prevents the servient tenement from building walls or structures that might block the dominant tenement’s access to light and air.

Negative easements can be imposed if the use of land will restrict the property rights that the dominant tenement is ordinarily entitled to, cause excessive environmental harm, or damage the character of the neighbourhood.

How are easements created and enforced?

Easements fall under the jurisdiction of the Conveyancing Act (No 6) 1919 (NSW) and the Real Property Act (No 25) 1900 (NSW).

According to the NSW Land Registry Services (NSW LRS), a new easement ‘may be created by means of an appropriate dealing registered in NSW LRS or by the inclusion in a section 88B instrument lodged with a new deposited plan.’

The terms for creating, modifying or releasing an easement are dependant on the type of land involved. Requirements vary between easements if the dominant or servient tenement is Old System land, Crown land or Torrens title land. Requirements will also vary if the new easement is created by an agreement, statute or Order of Court.

An easement of necessity, for example, is created by an Order from the Court. The NSW LRS specifies that the Court may impose an easement if it is deemed reasonably necessary for the use or development of another parcel of land. This type of easement is commonly granted when services, drainage or land cannot be accessed without crossing the boundary of a neighbouring property. In this instance, the Court will ensure that compensation is paid to the owner of the servient tenement.

Extinguishing a Property Easement

Pursuant to Conveyancing Act (No 6) 1919 (NSW) s 89, an easement can be modified or wholly or partially extinguished if it unreasonably impedes the owner of the land subject to the easement or if the easement no longer holds practical benefit to the persons entitled to the easement. The Court may also classify an easement as abandoned if the land has remained unused for at least 20 years.