Property easements and access rights affect how you can use rural property. They grant others legal rights to cross, access, or use portions of your land for specific purposes. Understanding what easements exist on a property before purchase prevents costly surprises and access disputes. This guide explains how to identify and interpret easements on Australian property titles.
Note: This article provides general educational information only. Always seek professional advice from conveyancers, solicitors, or licensed surveyors for specific properties. This content does not constitute legal advice.
Property Easement Meaning and Why It Matters
An easement is a legal right granted to a person or entity to use a portion of someone else’s land for a specific purpose. Understanding easements is essential for anyone buying, selling, or developing rural property.
What Is an Easement?
An easement may generally be described as the right to use another person’s land without occupying it. The land burdened by the easement is called the servient tenement. The land benefiting from the easement is the dominant tenement.
Easements are registered on property titles and bind current and future owners. Removing an easement typically requires formal legal processes and agreement from all parties. Easements generally remain in force until formally discharged.
Property owners are generally required to allow easement holders to exercise their rights. Blocking or interfering with registered easements may create legal liability and potential disputes.
Common Examples of Easement on Rural Land
Rural properties commonly contain easements for:
- Infrastructure access including electricity transmission lines, telecommunications cables, water pipelines, gas mains, and sewerage infrastructure. Utility companies hold these easements to install, maintain, and repair services.
- Driveway access where landlocked properties require access across neighbouring land to reach public roads. These easements guarantee the right to cross specific routes.
- Water infrastructure including irrigation channels, drainage lines, stock water pipelines, and dam access. Historical water-sharing arrangements often create permanent easements.
- Fencing and boundary maintenance allowing neighbours to access boundary fences for repairs and upkeep.
Rural property easements may also cover livestock movement routes, firefighting access, or historical access paths.
Easement and Right of Way Explained in Plain Terms
Right of way is a specific type of easement. Rights of carriage way grant the right to travel over land using vehicles, while rights of footway grant the right to walk over land.
Right of way easements specify the permitted route, width, and sometimes usage restrictions. Some allow vehicles, others permit pedestrian access only. Reviewing easement terms carefully helps you understand what access is permitted.
Types of Easements Found on Australian Property Titles
Australian property law recognises several easement categories. Each type functions differently and carries distinct implications.
Right of Way Easement
Right of way easements grant access across servient land to reach another property or public road. These are the most common easements on rural properties.
Right of way easements specify the route, width, and permitted uses. Some allow unrestricted vehicle access. Others restrict use to specific purposes or times.
Shared driveways often operate under right of way easements. Multiple properties share access along a common route, with each holding easement rights over portions they don’t own.
Maintenance responsibility for right of way easements typically falls to the easement holder, though this varies by easement terms. Check the registered easement documentation for specific maintenance obligations.
Appurtenant Easement
Appurtenant easements benefit a specific parcel of land (the dominant tenement) and burden another parcel (the servient tenement). The easement “runs with the land,” meaning it transfers automatically when either property is sold.
Most rural access easements are appurtenant. A landlocked property’s access easement across a neighbour’s land is appurtenant – it benefits the landlocked property and burdens the access route property.
When you buy property with an appurtenant easement benefiting it, you automatically receive the easement rights. Conversely, when buying property burdened by an appurtenant easement, you inherit the obligation to honour that easement.
Easement in Gross
Easements in gross benefit a person or entity rather than a specific parcel of land. Utility company easements for power lines, water pipes, or telecommunications cables are typically easements in gross.
These easements allow the utility company to access and maintain infrastructure regardless of land ownership changes. You cannot prevent the utility company from exercising its rights under a registered easement in gross.
Easements in gross may be personal (benefiting an individual) or commercial (benefiting a company or organisation). Commercial easements in gross can be assigned to other entities.
Property Easement Agreements and How They Work
Property easement agreements document easement terms, including permitted uses, maintenance responsibilities, and access conditions. These agreements are registered on property titles to bind future owners.
Formal easement agreements created by deed specify exact terms. Older easements may rely on historical documents with less precise language. Modern easements typically include detailed specifications about permitted activities and restrictions.
Some easements arise by implication rather than formal agreement. Statutory easements created by legislation or court orders also appear on titles. These function identically to agreed easements once registered.
How to Check for Property Easements on a Rural Property
Identifying easements requires systematic title and plan review. Follow these steps to find all registered easements.
Step 1: Find the Property’s Title Reference or Lot Number
Every property has a unique identifier in Australia’s land registry systems. This may be called a Certificate of Title number, Volume and Folio reference, or Lot and Plan number depending on your state.
Obtain this information from:
- Real estate listings or advertisements (often included)
- Council rates notices (if you own the property)
- Previous contracts of sale or purchase documents
- Asking the vendor or real estate agent directly
You cannot conduct a title search without this reference number. Verify you have the correct identifier for the exact property you’re researching.
Step 2: Order a Title Search from Your State’s Land Registry
Each Australian state and territory maintains its own land registry. Order title searches through:
- NSW: NSW Land Registry Services (nswlrs.com.au)
- Victoria: Land Victoria (land.vic.gov.au)
- Queensland: Queensland Titles Registry (titlesqld.com.au)
- South Australia: Land Services SA (landservices.com.au)
- Western Australia: Landgate (landgate.wa.gov.au)
- Tasmania: Recorder of Titles (justice.tas.gov.au)
- Australian Capital Territory: ACT Land Titles Office
- Northern Territory: NT Land Titles Office
Title searches cost approximately $20-50 depending on the state and format (electronic or paper). Most registries offer instant online searches providing immediate results.
Order both the Certificate of Title and the Title Plan (also called Deposited Plan or Survey Plan). The certificate lists easements in text form. The plan shows easement locations graphically.
Step 3: Review the Title Document for Easement Notations
The Certificate of Title contains a section listing registered encumbrances, including easements. This section may be titled “Encumbrances,” “Interests,” “Easements,” or similar depending on state format.
Easement notations typically include:
- Easement type (e.g., “Right of Way,” “Easement to Drain Water”)
- Purpose and permitted uses
- Reference to the registered plan showing location
- Creation date and registration number
- Beneficiary (who holds the easement rights)
Some titles list multiple easements. Read each entry carefully. Note whether your property benefits from easements (you hold rights over other land) or is burdened by easements (others hold rights over your land).
Older titles may reference historical documents by notation number. Request these documents from the land registry if notations aren’t self-explanatory.
Step 4: Check the Plan or Diagram for Easement Locations
The Title Plan or Deposited Plan shows easement locations graphically. Easements appear as shaded areas, hatched zones, or marked with abbreviations like “E” for easement or “ROW” for right of way.
Plan legends explain symbols and abbreviations. Check the legend carefully to interpret markings correctly.
Easements are typically dimensioned on plans, showing width and precise location. Cross-reference plan notations with the Certificate of Title to confirm what each marked area represents.
Some plans include multiple easements overlapping in the same location. Infrastructure easements for different utilities may share the same route. Identify all easements affecting areas where you plan to build or develop.
Example: Reading a Right of Way Easement on a NSW Property Title
Consider a typical NSW rural property title showing:
Certificate of Title notation: “Right of Way 3 metres wide as shown on DP 123456 for the benefit of Lot 2 DP 123456”
Title Plan shows: A 3-metre-wide corridor marked “ROW” running from the property boundary to the neighbouring lot.
Interpretation: The neighbouring property (Lot 2) has a registered right to use a 3-metre-wide strip of your land for vehicle access. This is an appurtenant easement benefiting Lot 2. You cannot block this access route, build across it without consent, or prevent the neighbour from using it.
The easement holder (Lot 2 owner) can drive vehicles along the marked route. You retain ownership of the land but cannot interfere with the easement right.
Building Over a Property Easement: What You Need to Know
Building over an easement typically requires approval from the easement holder and local council. Restrictions protect the easement holder’s rights and prevent interference with infrastructure.
Why Most Councils Restrict Building Over Easements
If you want to build or undertake any works on or over an easement or within one metre of council assets, you must get approval. Councils and utility companies restrict building over easements to:
Maintain access to underground services including water, sewer, drainage, gas, electricity, and telecommunications infrastructure. Service providers need clear access for repairs and emergencies.
Prevent structural damage to pipes, cables, or drainage systems. Building foundations, driveways, or heavy structures can crush infrastructure or impede drainage flow.
Preserve easement functionality. Buildings blocking access routes prevent easement holders from exercising their rights, creating legal disputes.
Minor, temporary, or easily removable uses may not require permits, such as lawn, minor plantings, or garden beds with borders up to 200mm high. However, permanent structures almost always require formal approval.
Checking with Local Authority Before Building or Fencing
Always verify restrictions before building anything over or near easements:
Contact your local council’s planning or building department. Describe the proposed structure and provide easement details. Council staff can confirm whether approval is required.
Contact the easement holder directly if the easement benefits a private party rather than a utility or council. Obtain written consent before proceeding.
Engage a licensed surveyor to mark easement boundaries on the ground. This prevents accidental encroachment during construction.
Submit formal applications for “building over easement” approval before applying for building permits. Some jurisdictions prohibit local governments and private certifiers from approving building work applications unless consent has been obtained from each registered holder of an easement.
Risks of Ignoring Registered Easements
Building over easements without approval creates serious consequences:
Councils can issue stop-work orders and refuse building permits until easements are addressed. This delays projects and increases costs.
Easement holders can demand structure removal at your expense. Courts can order demolition of buildings that improperly interfere with easement rights.
Property values may decrease if buyers discover unauthorised building over easements. Title searches reveal easement breaches, deterring potential purchasers.
Insurance claims may be denied if damage relates to unauthorised construction over easements.
Legal liability arises if your structure damages infrastructure or prevents emergency access. Costs for repairing damaged services fall to the property owner who improperly built over easements.
How Property Easements Affect Access and Use of Rural Land
Easements create ongoing obligations and practical considerations for property use.
Shared Driveways and Water Lines
Many rural properties share access infrastructure with neighbours. Shared driveways under right of way easements require cooperative maintenance and cost-sharing unless easement terms specify otherwise.
Water pipeline easements allow infrastructure crossing your property to serve other landowners. You typically cannot interfere with pipes, redirect water flow, or prevent maintenance access.
Shared infrastructure easements work best when all parties understand their rights and responsibilities. Obtain copies of registered easement documents showing exact terms.
Access Across Neighbouring Land
Properties without direct public road frontage rely on easement access across neighbouring land. These easements are critical—without them, properties become landlocked and effectively unusable.
Verify access easements are properly registered before purchasing rural property. Verbal agreements or informal access arrangements provide no legal protection. Only registered easements bind future owners.
Check easement width, permitted uses, and maintenance terms. Some access easements restrict use to specific purposes (e.g., agricultural only, no residential traffic). Understand limitations before committing to purchase.
Maintaining Access Without Disputes
Prevent easement disputes through:
Clear communication with easement holders and neighbours sharing infrastructure. Discuss maintenance expectations and cost-sharing upfront.
Documenting easement terms in writing even when friendly relationships exist. Relationships change, properties sell, and written agreements prevent future misunderstandings.
Keeping easement routes clear and maintained. Overgrown vegetation, gates without agreed keys, or blocked access routes create conflicts.
Respecting easement holder rights even when inconvenient. Attempting to restrict registered easement rights creates legal liability.
Regular maintenance of shared infrastructure according to easement terms. Neglecting maintenance damages relationships and may breach easement obligations.
When to Get Professional Help
Several professionals provide specialist expertise for easement matters.
Licensed Surveyor: Boundary and Easement Verification
Licensed surveyors identify exact easement locations on the ground. Surveyors provide:
- Identification surveys marking easement boundaries with pegs or marks. This shows precisely where easements affect your property.
- Advice about building setbacks and clearances required near easements. Surveyors help position structures to avoid conflicts.
- Expert reports for development applications or building permit submissions requiring easement documentation.
Engage surveyors before purchasing properties with complex easement arrangements or before planning major developments near easements.
Conveyancer: Interpreting Easement Documents
Conveyancers and property lawyers interpret title documents and easement terms. They provide:
- Plain-language explanations of easement impacts on property use and value.
- Advice about easement risks and how to address them in contracts of sale.
- Negotiation support for easement modifications, releases, or creation of new easements.
Use conveyancers during property purchases to review easements and advise on implications before exchange of contracts.
Council: Confirming Local Restrictions
Local council planning and building departments confirm:
- Building restrictions near or over easements in their jurisdiction.
- Application processes for building over easement approvals.
- Development controls affecting easement areas.
- Contact councils early in planning processes to understand easement-related requirements and approval timeframes.
Key Takeaways
Understanding and checking easements protects your property interests and prevents disputes.
Always Review Easements Before Purchase
Order title searches and plans for every property you consider buying. Read easement notations carefully and understand their practical implications.
Easements significantly affect property value and usability. Properties with extensive easement burdens may warrant lower purchase prices to reflect restricted use.
Budget for professional advice when easements appear complex or potentially problematic. Legal and surveying fees are minor compared to costs of easement disputes.
Keep a Copy of the Title and Survey Plans
Maintain permanent records of your property’s title documents and plans. You’ll reference these repeatedly during ownership for building projects, boundary disputes, and eventual sale.
Updated title searches before major projects confirm no new easements have been registered since purchase.
Survey plans showing easement locations guide construction planning and help brief contractors about restricted areas.
Confirm Access and Use Rights in Writing
Never rely on verbal agreements or informal arrangements regarding easements. Insist on registered easements for critical access rights.
When purchasing property dependent on easement access, verify easements are properly registered and adequately serve your intended use.
Document maintenance agreements and cost-sharing arrangements for shared easements. Written terms prevent future conflicts when ownership changes.
Seek professional advice for all easement matters affecting property purchases, developments, or disputes. Conveyancers, solicitors, and surveyors provide specialist expertise protecting your interests.
Remember: This guide provides general information only. Easement law is complex and varies by state. Always obtain professional advice specific to your property and circumstances.
