Build Over an Easement


Can I Build Over an Easement?

Have you ever heard the term ‘easement’ before? If you’re not involved in the world of real estate, it’s unlikely that it has come up much in casual conversation. If you’re considering buying a property, it’s important that you understand anything and any terms that might affect your decision to proceed with the purchase. If there is an easement on your property it can affect how you’re able to use your land, so it’s crucial that you have a comprehensive understanding of what an easement is and what it can mean for your property.

Whether it be your first home or your tenth, buying a home can still be a challenging and nerve-wracking journey. Education is your best tool, as it allows you to think with your head and will stop you from falling in love with a house and buying it despite its flaws. Have you come across a fixer-upper or a perfect lot of land and want to build on it one day? If it’s got an easement, you’ll need to know exactly how that affects your future plans.

What is an easement?

An easement is a type of encumbrance – with other types of encumbrances being restrictive covenants and memorials. An encumbrance is any kind of existing claim to a lot or title that may restrict what you’re able to do with your property.

An easement, specifically, is when a party other than the titleholder has the right to access your property. Although that initially sounds quite extreme, easements are usually only limited to a small portion of the land – not the entire thing! In addition, someone acting on the easement and coming onto your property must only be doing so for the reasons laid out in the easement agreement ask experienced solicitors for Conveyancing Melbourne. There are three main types of easements:

#1 Private: this is a private agreement between two private property owners. These could include shared driveways, where one party has to use a portion of the other owner’s driveway to get to their own garage. It could also be an ‘ease of service’ easement, which is where electricity or sewerage services are located in one lot’s owner, and on occasion, need to be accessed by the other owner.

#2 Cross easements: this is usually, but not always, a variation of a private easement. This occurs when one building is built on the adjoining wall of its neighbours, such as in complexes or terraced streets. The burden of this easement lies on both homeowners, as they can’t do anything to compromise the wall providing support to their neighbours.

#3 Public: this can be where public services, e.g. sewage workers, electricians, mechanics, etc., have the right to your lot. This allowance happens when your bit of land is home to pipes or lines that benefit one or more of your neighbours – if they need repairs, the tradesman has the right to come and work on them. A public easement could also apply if a title owner has to trespass on a park, reserve, or similar piece of public land to access their home.

Can an easement prevent me from building?

Yes, it can, but not necessarily. The amount you’ll be affected will largely depend on the type of easement you have and what you want to build or renovate. Basically, you can’t do anything that will negatively affect anyone on your current easement agreement, as that would be breaking your easement. So, in the case of sharing a wall with your neighbour in a terrace apartment, you can’t go knocking that down and removing that structural support from their home.

Likewise, if your lot of land is home to your neighbour’s sewage pipes, you can’t remove these to build a swimming pool or gazebo. An easement like this, which disallows you from doing certain things, is sometimes considered a ‘negative easement’ on your behalf.

If what you’re planning on building or renovating doesn’t affect the specific patch of the property where your easement is restricted, it won’t affect it at all.

What about minor changes that don’t change anything structurally?

Technically, you can build something that doesn’t interfere with the terms of your endearment. Take this with a grain of salt, as your encumbrance can affect you in ways you wouldn’t expect. Using the underground sewer pipes as an example again, you may think that erecting a shed on that patch of land is okay, right? It sits above the ground and doesn’t affect the pipes at all? This proposed building project may still be refused because it will not allow tradespeople to reach the pipes should one burst or malfunction.

If you want to make small changes to your property’s easement area, even minor things like planting trees or shrubbery, it’s recommended to seek out the other party and ask for permission first. If you don’t do this and your neighbours disagree with the changes and can prove that they go against the encumbrance in whatever way, you’ll have to knock down or remove what you’ve done. When in doubt, it’s always the safer option to do it formally and get written agreements on any proposed changes. Contact a very professional and friendly team for Property Conveyancing Brisbane.

How can I find out if a property has an easement before I buy it?

Any type of easement, or encumbrance in general, is legally required to be disclosed to potential buyers by the current owner/seller. Saying that, if it is a negative easement, it will be unlikely to be trumpeted from the rooftops by the seller. It will more likely be buried within property pamphlets or details. This is where it’s crucial to have an experienced conveyancer on your side. They’ve helped buyers purchase thousands of homes and know all property-related documents like the back of the hand. They’ll be able to tell you any existing easements and how exactly that may affect your future in that house.

If you’re based in Brisbane or Melbourne, Jim’s Property Conveyancing are experienced, licensed professionals that will be able to guide you through buying a house. If there’s a sneaky easement, they’ll be sure to let you know! If your seller does not disclose an existing easement, your conveyancer will be able to assist you in preparing an argument or case to get the sale revoked (if that’s what you wish to do after learning about the easement).

Can I have an easement removed?

So, you purchased a title with an easement, thinking that it wouldn’t affect you much. Only, your plans have changed, and you’d know like to build something exactly where that easement is stopping you from doing so. Is there a way to remove an easement? There is, but it’s not simple. Having an easement removed is dependent on both parties in the original agreement consenting to it. If you want to remove an easement, it will likely be because you have the negative portion of that easement, whereas your neighbour is positively affected. It might be challenging to convince them to agree to give up on something like that.

If your neighbour disagrees, there is the potential to have it removed by the state. This is another time when having a professional with extensive knowledge of property law, a.k.a your property conveyancer, on your side. You’ll need to submit a planning permit or scheme and outline why your local building governing authority should approve it, despite the existing easement.

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