Useful Resources

Easements gross and restrictive covenants

You’d like to be the king of your castle, but as land sizes become increasingly smaller, or those small ‘nearly’ bits of land tucked into the corner of a block are carved up and utilised, more and more, easements are being used.

Easements are also used to supply or prepare for future use of essential services. Are easements inhibiting your use and enjoyment of your land?

Call me today to discuss.

What is an Easement?

An easement is basically a right to use a defined area of land in a particular way.

Easements over land give someone the right to use that land in a particular way even though they are not the land owner.

Reasons for granting an easement over land can include for example to supply access, sewerage, or supply of water or gas or drainage.

What is a Restrictive Covenant?

These are only utilised by state or local government.

Restrictive covenants restrict the use of a lot and do not necessarily benefit another lot.

Restrictive covenants simply prohibit you from doing something with a certain area of land, typically along one of the borders of your property, but not always.

What is an Easement in Gross?

An easement in gross is an easement that attaches a particular right to an individual or entity rather than to the property itself. The easement in gross is typically considered irrevocable for the life of the individual, and it can be rendered void if an individual sells the property upon which the easement request was based.

For example, a homeowner may have an easement in gross with a neighbour, allowing the homeowner to use a path through the neighbour's property to reach their property. If the homeowner then sells the property, the rights granted in the easement in gross cannot be automatically passed to the next property owner.

Another example is the service easements to Energex, or the local Council.

If an authority has an easement registered over your property then they will have the right to access the easement to maintain or repair the easement land or their equipment on the land. You cannot interfere with their access to the easement. If you do prevent access, action can be taken against you. An authority may have the right to destroy any building you put on the easement land to create access.

What is a Right of Way Easement?

An easement can exist with a neighbouring property, granting a lot owner access to another lot, but only for the purposes described in the easement.

The lot with access to an easement on the neighbouring lot is known as the “dominant tenement” (the benefited lot). The lot with an easement on the property granting access to a neighbouring property is known as the “servient tenement” (the burdened lot).

An easement does not grant a right of possession of the property. The owner of the benefitted lot can only use the easement for the purposes so allowed. If they begin to use the property in a manner not so allowed, the owner of the burdened lot can prevent them from using the land in an inappropriate manner.

What can I do for you?

If you are the owner of the benefited lot or the burdened lot owner And you believe the other party is acting in consistently with the easement you may have a legal cause of action and I can help you.

Call me now to discuss. Time is of the essence, The longer you wait the less likely you will be able to enforce your remedy. This is because a court may be inclined to think that you have accepted the other parties conduct.

The remedy of Abatement

Abatement is the right to reduce or remove the interference of the easement. This means if something is obstructing the use of an easement, like a locked gate, the benefited lot owner may cut the lock for access to the easement.

But it’s not that simple! Don’t do anything without legal advice and support, or you could be sued. You should discuss the following with me. Though the benefited owner is within their rights to exercise abatement, the Courts do not encourage it.

The benefited lot owner must ensure that:

The force used is reasonable and is not likely to be a breach of peace; and

no injury to the public is caused.

Legal Action

As a benefited lot owner being prevented from accessing an easement you can commence legal action in court. You can sue for nuisance or seek an injunction or damages against the owner of the burdened lot.

Who is Responsible for Maintenance?

Normally a grant of easement does not impose any obligation to maintain the easement to a certain standard. The property owner is only required to refrain from obstructing or preventing access to someone who has the benefit of the easement.

It is the person permitted to use the easement who must perform any necessary maintenance.

Can I Modify or Extinguish Restrictive Covenants or Easements?

Pursuant to s 181 of the Property Law Act 1974 (Qld), the court has the power to modify or extinguish an easement or restrictive covenant. Particular grounds must be satisfied, including but not limited to:

A change of circumstances that renders the easement or restriction unnecessary like a change in the owner of a lot, or that the continued existence of the easement or restriction interferes with the land owner’s reasonable use, or is contrary to public interest and that the proposed modification or extinguishment will not substantially affect the person entitled to the easement.

If a piece of real estate is purchased without the seller disclosing the nature of an easement, the buyer can seek legal remedies if the easement reduces the value of the property.