12 September 2013

An easement creates a right to utilize land owned by somebody else for a particular purpose. The land with the right to use the easement is often referred to as the dominant tenement or benefited land, and the land that grants the right is often referred to as the serivent tenement or burdened land. 

Easements do not confer a right of ownership in favour of the benefited land owner. Rather, they confer a right of access in favour of the benefited land over the portion of land subject of the easement. Accordingly, an owner of land cannot seek an easement simply to expand the size of his land. To do this the owner should either purchase or lease land from a neighbour.

Purposes of Easements

The purpose of easements is to accommodate or enhance the ability to use the benefited land. An easement cannot create a personal or commercial advantage unconnected with the occupation of the land.¹ The crucial consideration is whether the easement is reasonably necessary for the better enjoyment of the benefited land.

For example, parcel of land A may be land locked, which means it has no access to a road. Between land A and the road is parcel of land B. To be able to use land A, the owner would obtain an easement over land B. The easement would permit the owner of land A to drive his vehicle from his land through the easement (which is on land B) to the road. In this instance land A is the benefited property and land B is the burdened property. This is an instance where the easement would be deemed reasonably necessary for the better enjoyment or use of the land.

Examples of Easements

1. A driveway leading from the benefited property over the burdened property to the road.
2. A stormwater drain from the benefited property through the burdened property leading to a council drainage pipe.
3. A stormwater drain, electricity, telephone, internet cable, or freshwater pipeline passing through private landfor the purposes of servicing the wider community. These easements are usually sought by government authorities and may be statutory in nature.
   

Creation of Easements

Easements arise in many different ways. Some examples are: 

1. Express Grant - where the owner of burdened land grants an easement to the owner of benefited land;
2. Equitable Easement - where an easement is not validly created in common law but may be enforceable in equity;
3. Statutory Easement - where an easement arises by statute usually in favour of public authorities;
4. Express Reservation - where the owner of land grants away a portion of his land and reserves an easement over the portion so granted, in favour of the portion so retained;
5. Easement of Necessity - where a parcel of land requires an easement for its use. For example a parcel of land that is land locked will require an easement to access the road.
6. Implied Easement - An easement may be implied under the rule in Wheeldon v Burrows. For example, a person owns 3 parcels of land where parcels 1 and 3 are bridged by parcel 2. That person lives on parcel 1 but travels over parcel 2 to access parcel 3. He subsequently sells parcel 2. An implied access easement may be granted in favour of parcels 1 and 3 over parcel 2. Its noteworthy that since all three parcels belonged to the same owner at one point in time, an easement could not be granted. This is sometimes called a quasi easement which ripens to an easement proper upon sale.
7. Prescribed Easement - where there has been long-continued use of a portion of land in a manner consistent with an easement without an agreement to grant an easement. The continued use of an apparent right presumes an actual right.

Rules of Easements

For an easement to exist:²

1. There must be a dominant and servient tenement,
2. The easement must confer a real and practical benefit on the dominant tenement,
3. The dominant and servient tenement must be owned by different people, and
4. The subject matter of the easement must not be too vague or imprecise.

Installation, Maintenance & Repair of Easement

Pursuant to general easement law, there is no obligation on the owner of the servient tenement to make suitable an easement or bring it to any particularly standard.³ In fact the only obligation upon the owner of the servient tenement is a negative one restricting him from acts that would obstruct the use of the easement. It follows then that the burden of maintenance and repair is upon the owner of the dominant tenement.⁴ The owner of the dominant tenement is entitled to access the servient tenement in order to perform those repairs to the easement.⁵ However that right must be exercised such that it does not interfere with the reasonable use of the servient tenement.⁶

Interference

The owner of the servient tenement must not interfere or obstruct the easement granted. However interference is not actionable unless it is material or substantial. Hence fencing the sides of a right of way or installing a gate across the right of way does not necessarily constitute an actionable interference.⁷

Ancillary Easement Rights

Easements come with ancillary rights, the purpose of which is to give effect to the easement. For example:

1. an easement over land for the installation of power lines gave rise to a right to place towers on the land to support said power lines,⁸
2. an easement for the support of a building by an adjoining building entitled the owner of the dominant tenement to enter the servient tenement to carry out repairs to ensure continued support,⁹
3. a right of carriageway included the right to pave so much of its length as was necessary for its enjoyment,¹⁰
4. a right of way through a basement included a right to illuminate it,¹¹
5. a right of footway included a right to install stairs where the path was steep or slippery.¹²

Value of an Easement

Many land owners do not properly understand the manner in which a grant of easement should be valued. Since the easement does not confer a right of ownership on the benefited land, the market value or rateable value of the portion of land proposed to be used for the easement is not relevant. A more appropriate sum is the diminution in the value of the land that arises due to the installation of the easement.

The most popular method for the valuation of an easement is the "diminution" method otherwise known as the "before and after" method. This method was established by Hardie J in Rogerson v The Minister.¹³ It requires a valuation of the entire parcel of land to be determined before and after the installation of the proposed easement, with the difference between the respective valuations being the loss in value of the property.

Obtaining or Granting an Easement

For information on granting or obtaining an easement see our article on Easement Disputes.

Mersal & Associates are experienced property lawyers specialising in easement law. Should you require an easement or be aksed to grant one, contact our office to arrange an appointment.

¹ Hill v Tupper (1893) 159 ER 51, 53.
² Re Ellenborough Park [1955] 3All ER667, 673.
³ Jones v Pritchard [1908] 1 Ch 630, 637.
⁴ Duncan v Louch (1845) 115 ER 341, 343.
⁵ Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343.
⁶ Zenere v Leate (1990) 1 BPR 9300 at 935, Bland v Levi (2000) NSW ConvR 55-935.
⁷ Lehane v Jones (1982) NSW ConvR 55-079; Denton v Phillpot (1990) NSW ConvR 55-543 [59]; Owners Corporation of Strata Plan 42472 v Menala Pty Ltd (1998) p BPR 16,337 at 16,340-1.
⁸ Jones v Pritchard [1908] 1 Ch 630, 639.
⁹ Ibid 637-638.
¹⁰ Newcomen v Coulsen (1875) 5 Ch D 133 at 143.
¹¹ Owners of Strata Plan No 48754 v Anderson (999) 9 BPR 17, 199.
¹² Hanny v Lewis (1998) BPR 16,205 at 16,208.
¹³ (1968) LGRA 400.