An easement is a nonpossessory interest given to a specific person in another's property providing certain limited rights.
Some easements are those that run with the land and specific pieces of property even if they change hands. An example is an access easement allowing public access to adjacent lands. Other easement covers more than just a right of access, such as the right to build on an adjacent parcel or to allow utility companies run electrical lines, telephone lines, sewer pipe etc across it. They do not necessarily have to be related to the adjacent parcels, but they always touch or cross them. Easements are often referred to as any easement created to grant rights of use, egress, or only access to someone else's land for a specific purpose. It can be either exclusive (only one person can exercise it) or non-exclusive (several people may share it). A dominant tenement is a land that benefits from an easement, while another tenement puts some limitations on its use. Many properties also may also have a statutory easement. Additional types of distinguishing features include express easement and implied easement. An express easement concerns dealings that have clearly defined parameters with a specific purpose, establishing specific uses at certain times in designated ways. Implied easements are those not clearly stated but assumed to be accepted, such as an easement for access across private roads forming part of a development. Various forms of registered easement include: private easement, public easement, negative easement, statutory easements, common easements, prescriptive easement, telecommunication easements or drainage easements
An easement registered on your property title of the land burdened is created in order to benefit one piece of property, which is referred to as the dominant land or dominant estate, with certain rights over other's property, known as the servient estate. Generally, whether an easement is positive or negative decides who benefits from the easements created.
They can be vertical or horizontal. Vertical easements (which can also be limited by duration) provide access to the easement to just the owner(s) of the dominant tenement whereas horizontal ones (which typically last indefinitely) grant access to anyone who may occupy that specific area.
To create an easement requires both intent and agreement on behalf of all parties involved; some legally required restrictions exist regarding what can or cannot be done while occupying an easement or what someone can and cannot do, such as using a builder to build a permanent structure.Both the easement holder, owners of the servient and dominant tenements respectively can enforce an easement against the below.
Any person who is not a party to the instrument but claiming through someone who was.
Any person whom we could have made a party as landowner over which the easement runs (even if they were in fact served with notice).
If you want to try enforcing an easement against someone else, then you will often need permission from your local council and some legal advice. It may be that it is impossible for you to do so because there is no right arising from contract and so there's nothing really "to enforce". Or perhaps you will need to rely on your rights under the common law.
The most common way in which a person will bring an action to enforce registered easements is, perhaps unsurprisingly, where the new owner has suffered some damage for failing to comply with that which is required by their legal obligations.
In general, this means that a right of passage for a road or path can often be enforced when a vehicle blocks it. Easements over land generally allow the dominant owner to do what they want on it-except when there's a "public duty" affecting them.
This may lead to situations where someone erects something with a builder on their servient tenement that interferes with the easement and causes injury through blocking off light, air or access from the dominant tenement.Registered easements can be a hindrance for the land owner when attempting to sell a property because some easements such as electricity, water, sewer pipe etc can be regarded as burdensome a person's land. A buyer may try to renegotiate with the seller or refuse outright to buy if easements are found on title. Easements can allow a potential purchaser considerable bargaining power, either by suggesting that they will not go ahead with the sale unless they are released from their obligation or by raising questions about who is responsible for the costs to maintain, repair and replace items that constitute the servient tenement. Property is only worth what someone else is prepared to pay for it. If you subscribe to this theory then yes an easement is likely to affect property value because it is something that needs to be taken into consideration when negotiating a price. On the other hand, there are people who believe that an easement does not affect the price of the property. In relation to this question, it is probably best to employ a legal specialist who may be able to advise you on your particular case.
The general rule is that whoever brings a claim for breach of restrictions of an easement has the burden of proving their case. From thereon, if their case relies completely on documentary evidence, then once they have satisfied the court as to what the documents mean and how much weight should be given them, then it will be up to whichever party was demanding compliance with the easement at issue as to how they respond in regards as to whether or not they breached the other party's rights. In most cases though these would have been undertaken by one particular party. For example, if the burden of proof is on the defendant then the only way to get through it is to provide evidence that clearly states that they were not at fault and had no duty as such, or more simply put-that they did nothing wrong.
When we say that easements can be burdensome for the property owner, it's because if you own the dominant tenement and someone has an easement over your property to get to their land-that'll affect the value of your land. In addition to this, if you have been affected in any way by a public or private nuisance then you could claim for damages. If the advantage from having an easement runs with the land then it should also continue even when two parcels are sold. If one party does not want to sell but does have an easement on their property which is being used by another party who wishes to purchase both parcels together, then there could be a problem arising because of this uneasiness. In order to avoid complications such as the above which may arise if two parcels are sold together but one has an easement on it, it's generally advisable to sever those parts from the property which is being sold.
For the most part, no. An easement covers the right that can be created or extinguished through an agreement between both the easement holder parties-however it cannot be changed without the consent of both parties. It was assigned to its current owner once ownership of the servient tenement changes hands.
If you wanted to change the terms of your easement in any way then you would have to contact your neighbouring property owners and make them aware of your intentions to change how it functions. This should not affect their rights in any way because they already have this right which has been set out in black and white-this only applies if you wanted to change this for some reason though.
The New South Wales state government has a handy guide to easements available here, but check if it applies to your area.