An easement is a right of one party to use property owned by someone else. For instance, an easement may allow another party to enter onto adjoining land or run services such as water and sewage mains, power and telephone lines, natural gas lines, drainage pipelines or cables and substations over the property.
Restrictive covenants limit the way a property is used or developed. An example is when a building must be of a certain size, height or made of certain materials. The restrictive covenant may also determine where the property is located on the site. Normally, these restrictions are in place to protect and preserve the amenity and character of neighbourhoods.
Case study: Beware of hidden easements
In a case in Queensland, a purchaser was allowed to end a contract of sale and was entitled to a return of the deposit, and the cost of titles thrown away, because an easement was not made known at the time of the contract. The easement was included in the title deed but not disclosed in the contract.
In the section of the contract covering title encumbrances it had been marked ‘none known’ when the property actually included an easement for drainage purposes.
However, the easement had been covered by new landscaping done by the owners, including paving, gardens and a pergola attached to the house from a dividing wall. The owners were required to get Council approval for any structures built over the easement, and if the Council needed to carry out works on the easement, these improvements would have to be removed at the owner’s expense.
The findings from the court case showed that the vendor wasn’t fully disclosing all information on the contract and that the purchaser wasn’t getting what they were entitled to. This meant that contracts that claim there are no encumbrances, when easements do actually exist, are misleading representations made by vendors and real estate agents who have an obligation to ensure all registered easements are made known to the purchaser on contracts for sale.
Case study: Easement or encroachment?
Question: I have an easement on my waterfront property and the public is repeatedly cutting across the easement boundaries and walking over my garden bed to access the beach. What is the line between easements and encroachments?
Easements and encroachments often affect the ownership of land. People may have been crossing your property for years to gain access to the beach – long before you were the homeowner. Benefits and burdens run with the land – what you obtained when you acquired the property from the previous owner passes on to you. The easements and encroachments, whether they be benefits or burdens upon your property, which existed at the time that you acquired the land, continue while you own the land.
A right of way is a form of easement granted by the property owner, which gives the right to travel over your land and to have the reasonable use and enjoyment of your property to others, as long as it’s not inconsistent with your use and enjoyment of the land. In your case, ownership rights of the property are lessened by the easement, but the public at large benefits due to the additional freedom of movement.
An encroachment, however, is an unauthorised entry upon the property of another. Trespassing creating injury to a property by an unauthorised and direct breach of the boundaries enables a property owner to bring a lawsuit to recover damages for the intrusion. In your case, the damage incurred to the garden bed. The reverse is also true, when you trespass or encroach upon the land of another, you can be held responsible for damages. Look into this carefully and seek advice from a solicitor.