What an easement is

How an easement works

A registered easement creates rights over land for a defined purpose. The property carrying the burden is commonly called the servient tenement. Where the easement benefits another property, that property is commonly called the dominant tenement.

Some easements do not benefit another parcel of land. An easement in gross may instead benefit a public utility provider. The registered instrument identifies the purpose, the provider involved and the rights and obligations that apply.

Access easements

An access easement may allow the owner or occupier of another property to cross defined land, often to reach a public road. The instrument and plan should be reviewed to understand the location, permitted use, width, maintenance arrangements and any limitations on access.

Drainage and sewerage easements

A drainage or sewerage easement may allow council or a service provider to install, operate, access or maintain infrastructure within a defined area. The effect on building or landscaping depends on the easement terms, the infrastructure and the requirements of the relevant authority.

Electricity and service easements

Electricity and utility providers may hold easements for powerlines, cables, pipes or other infrastructure. The easement may include access, maintenance and clearance rights. Any proposed work near the easement should be discussed with the relevant provider and appropriate building or planning professionals.

Overland flow and other easements

An easement may also deal with overland water flow, support, services or another defined purpose. The title description alone may not explain the full effect. The registered instrument and any incorporated standard terms should be reviewed.

A current survey plan for the lot may not show every easement affecting the property. An easement may have been created on another survey plan. Start with the title search, identify the relevant dealing or instrument and obtain the plan referred to in that document.

Why it matters for buyers

How an easement may affect the property

The existence of an easement does not automatically make a property unsuitable. What matters is understanding the rights it creates, the area affected and whether it conflicts with your current or future plans.

Building and improvements

An easement may affect the location of an extension, pool, shed, driveway, retaining wall, landscaping or other work. Approval requirements depend on the easement terms, the relevant authority, the infrastructure involved and the proposed work. Do not assume proposed work within or across an easement area will be permitted.

Access and maintenance

An easement may allow another owner, council or utility provider to enter part of the property for access, inspection, maintenance or repair. Review when access may occur, who is responsible for maintenance and whether the arrangements could affect privacy or day to day use.

Existing structures

If a building, pool, fence or other improvement appears to be within an easement area, investigate whether the work was approved and whether any consent from the easement holder was required. Obtain advice before assuming the structure can remain or be altered.

Development potential

Where the purchase depends on renovation, subdivision or future development, the easement location and terms should form part of the feasibility assessment. A town planner, building certifier, engineer or registered cadastral surveyor may be required in addition to legal advice.

Understanding an easement usually requires more than one document. Ask your solicitor or law practice to review the title search and registered easement instrument. Obtain the plan referred to by the easement, and use a registered cadastral surveyor where its position needs to be established on the ground.

A practical point

An easement near a boundary may have little effect on one buyer's plans, while an easement through a proposed building area could be significant for another. The important question is not simply whether an easement exists. It is whether its location and terms affect the way you intend to use the property.

An easement does not cease to apply simply because it is not currently used. Changing or extinguishing an easement may require agreement, registration or a court order, depending on the circumstances. Obtain legal advice before assuming an easement can be removed or altered.

Local context

Easements in the Noosa region

Easements in Noosa can arise for access, drainage, overland flow, utilities and other purposes. The relevant documents and practical effect should be checked for the individual property.

Noosa Council easements Noosa Council publishes standard terms for certain drainage infrastructure, access rights and overland flow easements. Where a title refers to council standard terms or a registered memorandum, obtain and review the referenced document rather than relying only on the short description shown on the title.

Hinterland access Rural and hinterland properties may rely on access across another lot or carry access rights benefiting neighbouring land. Confirm the legal access, physical access route, maintenance arrangements and whether the formed driveway or track aligns with the registered easement.

Waterfront properties Waterfront land may be affected by easements as well as separate controls involving tidal land, revetment walls, pontoons, drainage, vegetation or environmental management. These controls are not interchangeable. Each should be identified and considered separately.

Other registered interests Covenants, nature refuge agreements and other title interests may restrict clearing, development or use. They are not all easements and should be identified and interpreted according to their own terms.

Before you buy

Questions to ask about an easement

Does the property carry the burden or receive the benefit?

Confirm whether the easement burdens the property, benefits it, or creates both rights and obligations.

What is the easement for?

Read the registered instrument and any incorporated standard terms to understand its purpose.

Where is it located?

Obtain the plan referred to by the easement and consider a registered cadastral surveyor if its position needs to be confirmed on the ground.

Who can use or access the area?

Identify the benefited land or public utility provider, then confirm who may exercise the easement rights.

Who is responsible for maintenance?

Check whether the instrument addresses maintenance, repair, access costs or damage arising from use of the easement.

Does it affect existing improvements?

Investigate whether any building, pool, fence, driveway or landscaping is located within the easement area and whether relevant approvals exist.

Does it affect your plans?

Consider whether the easement changes what may be possible for renovation, access, landscaping, subdivision or future development.