From utility lines in suburban backyards to decades-old driveway rights on rural blocks, easements can allow complete strangers to legally access your land. Photo: JohnFScott.
Imagine finding your dream rural getaway, securing council approval for a stunning lakeside renovation and clearing the site, only to discover you legally cannot lay a single brick.
Why? Because an agreement signed decades ago gives your neighbour the permanent right to drive a tractor straight through your future living room.
Welcome to the world of the easement: a legal, non-possessory right to use or access someone else’s property for a specific purpose.
These rights cover a wide range of scenarios, from a utility company running underground power lines to a neighbour using a shared driveway to reach a landlocked block.
For many property owners, an easement never impacts daily life. But things can easily go spectacularly south.
Like the notorious Coopers Island Road dispute, in which decades of public access to a popular waterway clashed with a private landowner’s attempts to block a road running through their property. Or the historic Old Canberra Inn, which required complex easement adjustments just to accommodate kitchen expansions, accessible bathrooms and outdoor dining.
Easement disputes may seem like bizarre modern inconveniences, but they are rooted in decades of property law, BDN Lawyers solicitor Aedan Billiards says.
“True rural properties are rare in the ACT. Most easements here are tightly controlled urban networks tucked away in residential backyards,” he says.
“Everything is dictated by the Crown and clearly prescribed in the land lease agreement. The ‘benefiting authority’ is almost always the ACT Government or a utility provider maintaining sewers, drains and power lines,” he explains.
“The most common issue with these arises when people want to build a structure over a public easement. If you build anything that restricts access, the prescribed authority has the right to remove it. They aren’t obligated to ask or even inform you before they do.”
With massive chunks of farmland, NSW on the other hand, is flooded with private easements like Rights of Carriageway (think dirt roads cutting through a neighbour’s property to reach a landlocked block).
“In legalese, this creates a relationship between a ‘dominant tenement’ (the landlocked block enjoying the access) and a ‘servient tenement’ (the unfortunate block bearing the physical burden of the path),” Aedan says.
“Many of these private agreements were struck between friendly farmers in the early 1900s and later inherited by new owners.”
BDN lawyers solicitor Aedan Billiards stresses the vital importance of working with experts who will alert you to easements before they become a massive legal hassle. Photo: Pete Dawn, Fifth Lane Photography.
This often unwanted inheritance can spark bitter feuds. Today, these disputes are usually citizen-on-citizen, with neighbours fighting over locked gates, property access or broken maintenance promises.
While there’s not much a person can do about public easements, private agreements can be varied or withdrawn — ideally by consent from both parties, but if not, through litigation. But it’s not easy, Aedan says.
While there is little a homeowner can do about public utility easements, private agreements can be varied or withdrawn — ideally by mutual consent.
But when neighbours can’t agree, the rulebooks they try to write for each other can get incredibly creative.
“We have seen all kinds of wild conditions proposed,” Aedan notes. “One party demanded that the burdened lot approve every single guest invited onto the neighbouring land before they could use the access road.
“Imagine inviting your parents over for lunch and having to ask your neighbour’s permission for them to drive up the driveway. It sounds ludicrous, but it happens.”
Failed private negotiations can escalate to litigation, but it’s rarely an easy fight.
“The burdened party would have to prove that the easement is no longer being used for its intended function or right,” Aedan explains. “Alternatively, if there are maintenance clauses requiring the benefiting party to look after the road and they fail to do so, the landowner may have grounds to pursue removal.”
Any changes must be formally lodged with the appropriate authority, such as ACT Land Titles or NSW Land Registry Services, which inevitably involves lawyers.
In short, it is a massive hassle.
So why does anyone purchase a property burdened with restrictions they aren’t willing to live with? The answer is both simple and perplexing.
“Sometimes, they just don’t know,” Aedan says.
“Easements must be registered against the property, so they will always show up on a title search. This should be flagged to prospective buyers by their conveyancer or solicitor, but there have been instances where buyers claim their lawyers failed to inform them.
“It highlights the importance of working with experts who will walk you through the presence and implications of any easements.”
For more information, visit BDN Lawyers.
