9
Mar
2023

An easement is the legal right to use another person’s property for a specific purpose or use.

Some common types of easements include:

• easement for services i.e. water pipes, sewage, power lines etc.
• easement for access e. shared driveway
• easement for support

Dominant tenement means the land benefiting from the easement.

Servient tenement means the land which is burdened by an easement.

If you require an easement over your neighbour’s property, you should first approach your neighbour and negotiate with them directly. You may also want to offer reasonable compensation, depending on how much of your neighbour’s land you need to use. You may want to have the easement valued to determine the reasonable compensation amount.

If your neighbour has a mortgage on their property, consent will also be required from their mortgagee (i.e. their bank).

You should also consider the cost of legal fees (whether you will be offering to pay for your neighbour’s legal fees), mortgagee’s fees for obtaining consent and NSW Land Registry Services registration fees.

If you and your neighbour agree on the easement, you should have your legal representative prepare a Deed of Agreement which will set out the terms and conditions of the easement.

A form will also be drafted and registered with the NSW Land Registry Services. For more information on easements and restrictions please click on the link below: https://www.nswlrs.com.au/deposited_plans/easements_restrictions

If you and your neighbour cannot reach an agreement, you can apply to the Court for an Order creating an easement. The Court will make an Order imposing an easement under section 88K of the Conveyancing Act 1919 if the Court is satisfied that:

• the easement is reasonably necessary for the use or development of the land obtaining the benefit of the easement;
• use of the land having the benefit of the easement is not inconsistent with the public interest;
• the owner of the land burdened by the easement is adequately compensated for any loss or other disadvantage that will arise from the easement; and
• all reasonable attempts have been made by the person applying for an Order to obtain the easement and such attempts have not succeeded.

https://legislation.nsw.gov.au/view/html/inforce/current/act-1919-006#sec.88K

Also note the costs of the proceedings are generally payable by the person making the application.

If you require any assistance with respect to easements, please contact our team at Anderson Boemi Lawyers on 02 9653 9466.

Disclaimer

The content of the Anderson Boemi Lawyers website is provided for information purposes only. The contents of this website do not constitute legal advice and should not be used as such. Formal legal advice should be sought in particular matters. If you have a particular matter you need legal advice for, or you have any questions about our disclaimer please contact our office on (02) 9653 9466.