When considering buying property, you may hear the term ‘easement’.
An easement is a legal instrument that gives someone rights to use another person’s land in some specified way.
Under the new Land Transfer Act 2017 the terms around easements have been modernised, but the fundamental principles around easements remain unchanged.
The new terms emphasise the rights and obligations that land owners are given when an easement is granted.
The ‘burdened land’ is the land over which the rights are given under an easement to the benefited land. The ‘benefited land’ is land adjacent to the burdened land that has the rights attached to it.
Easements rights may be granted:
- to last permanently;
- for a specified period;
- over part, or all of a piece of land; and
- in gross.
An easement ‘in gross’ allows a person to use the burdened land, even though the user does not own any adjoining land (for example, an easement in gross may be granted to an electricity distribution company to allow it to install an electricity network on, under or over the burdened land).
There are many different purposes for easements. Common examples include:
- right of way – this may be general, with no limitations on its use, or limited, in that it imposes some limitation, such as time of use, area of use, or the nature of the traffic that may pass over it, or the persons who are entitled to use it;
- right to convey water, electricity, telecommunications, and computer media;
- right to drain water or sewage;
- party wall – used in semi-detached or terraced houses that share a wall, and common in old State houses, where each property is entitled to be supported by the wall; and
- eaves encroachment – where the eaves of a house extend over an adjoining property.