In new developments, adjoining owners may require the use of neighbouring land for essential services such as drainage - formalised legally by the creation of an easement recorded on the title of both properties. RMB Property and Planning Lawyer TANYA EMMETT explains
An easement is a legal right that allows a party, such as an adjoining owner (called the benefited owner), to use or access another person’s property for a specific purpose. In the case of drainage easements, this typically involves the right to install and maintain drainage infrastructure within a designated area of the neighbouring (burdened) land.
The easement also allows the benefited owner to access the burdened land, as required, to carry out maintenance, repairs, or upgrades to the drainage system.
Consent authorities, such as local councils, will often refuse to accept a development application for lodgement unless the applicant has secured the adjoining owner's agreement to the creation of an easement. This ensures that any necessary access or use of neighbouring land is legally authorised before the development can proceed.
This process often involves negotiation between the parties, with compensation payable to the burdened owner and the scope of works to be undertaken agreed upon. It is strongly recommended that such agreements be formalised in a deed, which clearly outlines the rights and obligations of each party, thereby reducing the risk of future disputes.
For common easements, the standard terms set out in the Conveyancing Act 1919 (NSW) are generally adopted. However, these terms can be supplemented with additional provisions where necessary, for example clauses requiring the benefited owner to pay for or contribute a specified proportion to the cost of maintaining a right of access easement.
In the case of more complex easements, it is advisable to engage an experienced legal professional to ensure that important considerations such as maintenance responsibilities, liability, and the potential extension of the easement are properly addressed and documented.
In most cases, the party seeking the easement is responsible for covering all associated costs involved in negotiating and establishing the easement, as well as undertaking any agreed works. These costs typically include surveyor fees, council application and registration fees, the grantor’s legal and valuation expenses, and any fees payable to any mortgagee.
Once agreement is reached, your lawyer can prepare the necessary easement documentation and manage its registration with NSW Land Registry Services, ensuring the process is completed correctly and in accordance with legal requirements.