When buying property in Victoria, you may come across the word “easement” in a title search, plan of subdivision or Section 32 Vendor Statement.
Many buyers are unsure what an easement means and whether it will affect their use of the property.
An easement can be an important matter to understand before purchasing a property.
What Is an Easement?
An easement is a legal right that allows a person or organisation to use part of another person’s land for a specific purpose.
The land that benefits from the easement is commonly referred to as the dominant land, while the land affected by the easement is referred to as the servient land.
An easement can affect the way a property owner uses or develops part of their land.
What Are Common Types of Easements?
Easements can be created for different purposes.
Common examples include easements for:
- Drainage
- Sewerage
- Water supply
- Electricity
- Gas
- Access
- Other services or rights affecting land
For example, a property may have a drainage or sewerage easement running through part of the backyard.
Where Can You Find Information About an Easement?
Information about an easement may appear in documents such as:
- The Certificate of Title
- The Plan of Subdivision
- The Section 32 Vendor Statement
- Other property or planning documents
The exact location, purpose and terms of an easement should be carefully reviewed.
A title search may identify that an easement exists, but the details may need to be considered together with the relevant plan or instrument.
Can an Easement Affect How You Use Your Property?
Yes.
Depending on the nature and location of the easement, it may affect what you can do on part of your land.
For example, an easement may affect plans to:
- Build an extension
- Construct a garage
- Install a swimming pool
- Build a shed
- Plant certain trees
- Carry out other works
This does not necessarily mean that development is impossible. However, additional approvals or consent may be required, and certain restrictions may apply.
Does an Easement Mean Someone Can Enter Your Property?
Not necessarily.
The rights associated with an easement depend on the terms of the particular easement.
Some easements allow access for specific purposes, while others relate to services such as drainage or sewerage.
It is important to understand the specific terms rather than assuming that every easement gives someone a general right to enter the property.
Why Should Buyers Check for Easements?
An easement may not be obvious during a property inspection.
A buyer may see a large backyard and assume they can build on any part of it. However, an easement may affect whether certain structures or works can be carried out.
Understanding easements before purchasing can help buyers make informed decisions about the property.
What Should Buyers Do Before Purchasing a Property With an Easement?
If an easement is identified, buyers should consider:
- Where the easement is located
- What purpose the easement serves
- Who has rights under the easement
- Whether the easement affects planned building or development
- Whether additional advice or approvals may be required
If you are planning renovations or development, it may be appropriate to obtain advice from the relevant council, authority or other professional before proceeding.
Can an Easement Be Removed?
An easement cannot generally be removed simply because a property owner does not want it.
Whether an easement can be removed, varied or extinguished depends on the circumstances and the applicable legal requirements.
A property owner should obtain appropriate legal advice before taking steps to change an easement.
Common Mistakes Buyers Should Avoid
Assuming an Easement Is Always a Problem
Many properties have easements, particularly for drainage and services.
The existence of an easement does not automatically mean that a property is unsuitable.
The important question is how the particular easement affects the property.
Ignoring the Location of the Easement
The location can be just as important as the existence of the easement.
An easement running along a boundary may have a different practical impact from one running through the centre of a backyard.
Assuming You Can Build Over an Easement
Before planning construction or other works, buyers should check whether the proposed work may be affected by the easement and whether consent or approval is required.
Not Reviewing the Title and Plan
The title and plan should be reviewed carefully to understand the nature and location of any easement affecting the property.
Frequently Asked Questions
Is an easement shown on the property title?
An easement may be recorded on the title and/or shown on the relevant plan. The documents should be reviewed to understand the easement and the rights associated with it.
Can I build over an easement in Victoria?
It may be possible in some circumstances, but this depends on the nature of the easement, the proposed works and any applicable requirements or approvals.
Does an easement reduce the value of a property?
Not necessarily. The effect of an easement depends on its type, location and how it affects the property’s use.
Should I be concerned if a property has an easement?
Not automatically. Easements are common. However, buyers should understand the specific easement and consider how it may affect their intended use of the property.
Need Help Understanding a Property Title?
Property titles and plans can contain important information that may not be obvious during a property inspection.
Prox Conveyancing provides professional conveyancing services and contract review assistance for property transactions in Victoria.
If you are buying property and want to understand the title, plan or other property documents, contact Prox Conveyancing for assistance.
About the Author
Meet Sally
Sally Kwok is a Licensed Conveyancer and the Director of Prox Conveyancing. With more than 16 years of experience in the conveyancing industry, she is committed to helping buyers and sellers navigate Victorian property transactions with confidence. Sally is passionate about providing clear communication, practical guidance and personalised service throughout every stage of the conveyancing process.
👉 Learn more about Sally on our About page.
About Prox Conveyancing
Prox Conveyancing is a Victorian conveyancing practice providing professional conveyancing services for residential property transactions across Victoria. We assist buyers, sellers, investors and families with a wide range of conveyancing matters, delivering personalised service, transparent communication and professional support from contract through to settlement.
👉Learn more about Prox Conveyancing on our About page.
This article provides general information only and is not legal advice. The effect of an easement depends on the specific title, plan, instrument and circumstances of the property. Buyers should obtain appropriate professional advice about their individual situation.