Easements: right of way and restrictions on your land

Published On: 27 June 2024

WHAT IS AN EASEMENT?

About one in 10 properties in South Australia contain an easement.

Easements are not marked on land, like boundaries are with fences.

An easement allows someone other than the owner of the land to access and use a section of that land. Easements can also restrict how the landowner can use that part of the land. A right of way easement allows an individual access over a specific part of land for a particular purpose. For example, a landowner may need to use a walkway or driveway through their neighbour’s property to access their home.

Easements can be a
• shared driveway
• access road
• pathways and walkways
• the right to park a vehicle
• a party wall (a shared wall between two or more properties)
• the right for utility providers like SA Water, SA Power or Council to have pipes, drains, and cables on private land. It also includes the right to repair or replace these services

As part of the process of purchasing a property, your conveyancer will make sure that you are provided with a ‘Register Search’ and ‘Form 1’ which will have details of any easements on the land you are looking at purchasing. They will make sure that you fully understand your rights and obligations in regard to the easement.

The Certificate of Title for your property will show if there is an easement. However certain types of easements may not be listed. Statutory Easements for electricity, sewerage, water and telecommunications are usually not listed.

Who owns an easement?

Registered easements will remain as the land is bought and sold. These can only be removed when both easement holders and the owners agree.

The Grantor (burdened party – usually the landowner) is the registered owner of the land and only gives up certain rights on that part of the land affected by the easement. The Grantee (benefiting party – eg SA Water or Council) is permitted access to the easement. They hold certain rights regarding usage of the area of land in the easement, but they don’t own that section of the land.

How an easement can affect property

There may be restrictions placed on how you can use the property and the land the easement covers. This can include building on the easement.

Easements that are in place for SA Water or Council provide access for these organisations to your land. If something goes wrong, they may need to access the land very quickly so you are usually unable to build anything that would restrict access to the easement, such as walls, sheds or pergolas. Flowers, plants, and certain trees are fine.

If you are unaware of any easements on your property (and the restrictions) and you build over the easement you will be held responsible for organising and paying for the structure to be removed, and repairing any damage caused.

How to find out if an easement is registered

Your conveyancer will provide you with the results of a Register Search that will include information about any easements and their location on the property. You will also be provided with a copy of the plan which will show the exact location of the easement.

You should carefully consider all the implications of an easement on a property before you sign a contract of sale. Contact Strathalbyn Conveyancing who can provide you with advice about easements on your property, or a property you may be considering purchasing.