Easements in South Australia: What, How, and Why
Easements are one of the most common, and most misunderstood, features of land ownership in South Australia. Many property owners only become aware of an easement when a dispute arises, it is revealed in a Form 1, or it limits what can be done with the land.
Whether you own land subject to an easement or benefit from one, understanding how easements operate can save time, cost, and frustration. This article explains what easements are, how they are created, and how common easements such as rights of way work in practice.
What is an easement?
An easement is a legal right that allows one party to use land owned by someone else for a specific purpose.
The land that is burdened by the easement is referred to as the servient land, and the land that receives the benefit of the easement is called the dominant land.
A key feature of an easement is that it is non-exclusive, in that it does not confer any rights of exclusive possession or ownership rights over the servient land. The servient owner continues to own and use their land, subject only to the rights granted by the easement.
Once an easement is registered, it becomes attached to the land itself or it “runs with the land”. This means it continues to apply even if the land is sold or transferred. New owners will inherit both the benefits and the burdens of any registered easements.
To be valid, an easement must be defined with adequate certainty. At common law, courts have rejected easements framed too broadly or imprecisely, such as those said to protect the flow of air, privacy, or a view.
Common types of easements
Easements can serve many purposes. Some of the most frequently encountered easements include:
- access easements and rights of way
- service easements for water, sewerage, drainage, electricity, or telecommunications
- cross easements or party wall arrangements
- easements in gross (which are created in favour of a statutory body (e.g. a Council) or the Crown)
Rights of way explained
Right of way easements are common and are also a frequent source of misunderstanding (and dispute!).
A right of way allows the dominant owner to pass and repass over a defined portion of servient land. The scope and extent of that right of access depends on the wording contained in the easement. The dominant owner does not gain the right to have unrestricted use of the servient land. Their rights are limited to those expressly granted, together with any rights that are reasonably necessary to make effective use of the right of way.
Reasonable use and interference
A right of way generally permits reasonable use only. What is reasonable will depend on the terms of the easement and the surrounding circumstances.
If the servient owner acts in a way that substantially interferes with the dominant owner’s reasonable use of the easement, that conduct may amount to unlawful interference or nuisance.
At the same time, the dominant owner must not use the easement in a way that unreasonably interferes with the servient owner’s use and enjoyment of their land. An easement must be exercised in a manner that balances both interests.
Maintenance and implied rights
Disputes often arise about maintenance of easement areas, particularly where the easement document is silent in this regard.
The common law is fairly settled in this area, and the Courts have generally held the position that the dominant owner does have ancillary rights to carry out works on the servient land to establish or maintain access. However, these implied rights are subject to limitations. Any works must be reasonably necessary for the use of the easement, proportionate, and carried out in a way that minimises impact on the servient land.
Changing or removing an easement
Easements are not always permanent. Depending on the circumstances, they may be varied, or extinguished.
In most cases, all affected parties, including the owners of both the servient and dominant land, must consent to any variation or extinguishment.
Why easements matter
Easements can have a significant impact on how land is used, accessed, and developed, and can be a source of frustration and stress if rights and obligations are not clear. While they provide important rights, those rights are carefully limited and must be exercised reasonably.
Every easement is different, and the rights and obligations involved will depend on the specific wording of the easement and the specific circumstances. If you are considering whether an easement is required, dealing with a dispute, or unsure about what your rights or responsibilities are in a particular situation, you can contact us to discuss your circumstances.
For more specific information on any of the material contained in this article please contact Katelyn Day on +61 8 8217 1307 or kday@normans.com.au
