What is an easement ?
An easement is a right that attaches to land which allows the owner of the land which is benefited by the easement (called the dominant tenement) to utilize the specific right conferred on the dominant tenement. As easements confer rights on the dominant tenement and do not confer personal rights on the owners of land, they attach to the title of the land. Accordingly, easements do not pass from owner to owner but always attach to the land they effect until such a time when they extinguished.
Rights conferred by an easement vary but all easements provide the dominant tenement some benefit. Conversely, this means the owner of another piece of land is disadvantaged or inconvenienced in some way by the easement, this is known as the subservient tenement.
Creation of an easement
Owners of property can agree to create easements for by being paid to give the easement but it is not necessary that an easement is paid for.
The substantive requirements of an easement involve.
- There must be a dominant and servient tenement.
- The easement benefits the dominant tenement and imposes some kind of burden on the subservient tenement.
- The dominant and servient tenement not held by the same person or company because if that occurs then the easement ceases to exist as the easement is extinguished by law.
S 88(1) of the Conveyancing Act identifies what is required to create an easement. The document which creates the easement must identify:
- The land to which the benefit of the easement is appurtenant and benefits.
- The land which is subject to the burden of the easement.
- The person having the right to release, vary, or modify the easement.
Once the document creating the easement is lodged with the Land Registry Services (LRS), the easement is noted on the title of the lands effected by it. This means the easement will be noted on the title of both the dominant and subservient tenements.
In a contract for the sale of a property, the Vendor is obligated to disclose whether there is an easement affecting title to the property being sold.
Types of easements
The usefulness of an easement can vary, however, common types of easements include:
- Rights of way: these allow the owner of the dominant tenant to pass over the subservient tenant without requiring consent every time. This is particularly useful where land may be landlocked and so the right of way is necessary for access to property.
- Rights of support: this relates to a right for buildings or parts of buildings to be supported by the adjoining building or common walls.
- Easements for draining or sewerage where lines pass through another parcel of land.
- Easements granting a right to encroachment. This may be appropriate where buildings or structures on the dominant parcel of land encroach onto the subservient land. In these circumstances it may be prudent to create an easement so that this encroachment is authorized and binds successors in title meaning the encroachment need not be rectified.
If you require advice in relation to an easement or the purchase or sale of property contact us on 42 222 666 or by email at email@example.com