Easements in Australia: How are they created? And other questions about easements

by The FindLaw Team

Property rights are considered sacrosanct to most people, and attempting to trespass on another person’s property is one of those actions that most of us knowingly don’t intentionally tread on (pardon the pun). However, there may be occasions where neighbours need to accommodate one another in their land usage, and in such a scenario, the creation of an easement may become a necessity. Sure we can sometimes be overtly territorial when it comes to our property, and the existence of an easement may cause some tensions between neighbours but thankfully, there are laws that exist which direct people in how easements are to operate, and by being aware of the obligations in regards to easements, may save you from any potential dramas with your neighbour.
 

What is an easement?

Before exploring in greater detail the laws surrounding easements, it’s probably a good starting point to clarify what exactly is an easement. Well, an easement gives a person the right to use a neighbour’s land without actual possession. So, having the right of way to pass through a neighbour’s land to get to yours is perhaps the most common example of an easement. 

Easements generally cannot exist without one piece of land deriving a benefit from another. The land that is deriving the benefit is known referred to as the dominant tenement, while the land which is subject to the easement is known as the servient tenement. In summation, an easement is a right which is taken from one estate, and attached to another.

Readers might assume that the two estates also need to be adjacent to one another in order for an easement to be created, but this is not always the case. The general approach when creating an easement is that if the estates are too far away from one another, the easement may not be considered valid because there may be no actual benefit to the dominant tenement – which is after all, the main reason for wanting to create an easement in the first place.

Easements that are of a 'benefit to the land'

Creating an easement that is a ‘benefit to the land’ means that there must be a connection to the normal use and enjoyment to the estate of the dominant tenement. In contrast, if there is no connection between a servient and dominant tenement, there is no valid easement in the majority of circumstances.

Another thing to be aware of is that easements cannot be created if it will lead to a situation where the resultant action will end in possession of the land. Furthermore, if a monetary output is required to maintain or create an easement, then the validity of an easement may fail.

What's the difference between positive and negative easements?

There are essentially two categories of easements: positive and negative. Both categories of easements mandate what can and cannot be done in the creation of an easement. 

A positive easement refers to a situation when the dominant tenement is in need of a benefit from the servient tenement. So, if a positive easement is validly created, the positive easement will allow a person to do things that would normally be considered as trespass or nuisance in the absence of the easement.

In contrast, a negative easement stops a servient tenement from doing things that would normally be permissible in their use and enjoyment of their estate under normal circumstances.

Creating easements 

Easements can be generally created either through a division of land or by long use. 

Long use easements are particularly interesting, because the rules bear a resemblance to that of adverse possession. So for example, if a person uses a neighbour’s land for 20 years or more, and the use of the land is unauthorised, but since the land has been used in such a fashion for the requisite statutory time period, then as a result, a legal easement by prescription has been created. 

Although, it should be noted that in order for an easement by prescription to be valid, the normal rules of creating an easement still applies. Therefore, an unauthorised use of the land that cannot lead to the creation of an easement under normal circumstances, will still not result in the creation of a long use easement – even after the statutory period. 

 


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