Easement benefits the property?

I have recently purchased a house in Brisbane and the contract has now gone unconditional. The settlement is on the 16th of Jan.

I received an email from my solicitor last night saying the title search reveals a registered easement which benefits the property. The easement was not noted on the contract.

Below is a summary from the title search:

1. Rights and interests reserved to the crown by deed of grant no. xxxxxx

2. EASEMENT No xxxxxx (L9723xxx) 23/05/1994 at 10:50 benefiting the land over
OVER EASEMENT A ON RP 818xxx

Does this mean this property I am purchasing has an easement which is located on other's land? Or the other way around?

I have asked my solicitor to do a search on the easement as the easement does not appear on the registered plan.

As we plan to redevelop the site in the future, is this going to limit our ability to redevelop the site? If yes, am I still at the stage to negotiate the price down?

Thanks for all your help!
 
Hi there,

Do you know what kind of easement it is and where it is located on the land?

Their sellers lawyers have the responsibility to disclose all easements before you sign the contract (my understanding but im not a legal expert) so if you wanted to you could actually get out of the contract without penalty (check with your lawyer though).

With regards to it affecting development interests, it depends where it is located on the property and what kind of easement it is. I would thoroughly investigate this now especially because you intend to develop it later on. Easements are the #1 killers of a good development site, potentially. Also, the easement may be benefitting your property as the way it is now, but may be detrimental to your future plans.

Good luck

Leo
 
I have recently purchased a house in Brisbane and the contract has now gone unconditional. The settlement is on the 16th of Jan.

I received an email from my solicitor last night saying the title search reveals a registered easement which benefits the property.
1. Your contract has gone unconditional, so you can't do anything now.

2. It's a beneficial easement, which means you have the right to access somebody else's property. It could be an access (e.g. shared driveway) easement, or might be because you have an air-conditioning unit hanging over the boundary, or for all sorts of reasons. It's very hard to say without knowing the property, but look at your property and theirs and you should be able to figure it out.
Do you know what kind of easement it is and where it is located on the land?
The OP is the beneficiary of an easement, not the grantor, so it's not on their land.
 
Just because the contract is unconditional does not mean you can't back out because the vendors solicitor stuffed up.

If the lot was burdened you would have grounds for pulling out of the contract.
 
I have recently purchased a house in Brisbane and the contract has now gone unconditional. The settlement is on the 16th of Jan.

I received an email from my solicitor last night saying the title search reveals a registered easement which benefits the property. The easement was not noted on the contract.

Below is a summary from the title search:

1. Rights and interests reserved to the crown by deed of grant no. xxxxxx

2. EASEMENT No xxxxxx (L9723xxx) 23/05/1994 at 10:50 benefiting the land over
OVER EASEMENT A ON RP 818xxx

Does this mean this property I am purchasing has an easement which is located on other's land? Or the other way around?

I have asked my solicitor to do a search on the easement as the easement does not appear on the registered plan.

As we plan to redevelop the site in the future, is this going to limit our ability to redevelop the site? If yes, am I still at the stage to negotiate the price down?

Thanks for all your help!

You really need to find out what it is.

Most easement of benefits in my state are for the use of a rear laneway giving you the benefit to be able to use it.

Your soli can look into the easement and find out what it is exactly but I would be less worried about an easement of benefit than an easement of burden.

In my state (WA) even if the sale is unconditional if there is an undeclared item which impacts on the material use of the land you can still negotiate or exit the contract. It of course is VERY messy and not for the fainthearted.
 
Just because the contract is unconditional does not mean you can't back out because the vendors solicitor stuffed up.

If the lot was burdened you would have grounds for pulling out of the contract.

I agree. I definitely think its worth double checking your legal options.

Leo
 
Just because the contract is unconditional does not mean you can't back out because the vendors solicitor stuffed up.

If the lot was burdened you would have grounds for pulling out of the contract.
True, if the lot was burdened. It's not; it's benefited.
 
Hi

Even if you are benefiting from the easement you still need to be aware of what it is for.

I know one instance where someone purchased a property and thought it had it's own driveway. Only to realise it was relying on an easement to access the public road over a neighbours piece of land and this turned into a long history of arguments as the neighbour wanted to actually put a gate in front of the easement and permanently lock it and even though they weren't legally allowed to, did in fact do it for a long period of time causing immense grief for my friend.

The actual driveway that the people I knew owned went to a laneway covered in bushes that gave access to nothing as it was in fact at the rear of an acreage property.

This is one instance where it is beneficial to know of what the easement you have is for.

Regards,

alicudi
 
Aren't all easements listed on the title document? So a title search should bring it up, and a copy of the title should have either been in the Contract of Sale, or should have been checked as part of DD?
 
Hi there,

Do you know what kind of easement it is and where it is located on the land?

Their sellers lawyers have the responsibility to disclose all easements before you sign the contract (my understanding but im not a legal expert) so if you wanted to you could actually get out of the contract without penalty (check with your lawyer though).

With regards to it affecting development interests, it depends where it is located on the property and what kind of easement it is. I would thoroughly investigate this now especially because you intend to develop it later on. Easements are the #1 killers of a good development site, potentially. Also, the easement may be benefitting your property as the way it is now, but may be detrimental to your future plans.

Good luck

Leo

Thanks Leo!

The easement is "eavesdrop". The eaves and guttering of the house overhang the boundary by 0.5 metres.

My solicitor says this shouldn't be an issue. Not sure if this is going to cause pain in the future if one day I decide to sell?
 
Hi

Even if you are benefiting from the easement you still need to be aware of what it is for.

I know one instance where someone purchased a property and thought it had it's own driveway. Only to realise it was relying on an easement to access the public road over a neighbours piece of land and this turned into a long history of arguments as the neighbour wanted to actually put a gate in front of the easement and permanently lock it and even though they weren't legally allowed to, did in fact do it for a long period of time causing immense grief for my friend.

The actual driveway that the people I knew owned went to a laneway covered in bushes that gave access to nothing as it was in fact at the rear of an acreage property.

This is one instance where it is beneficial to know of what the easement you have is for.

Regards,

alicudi

Thanks Alicudi!

The easement is "eavesdrop". The eaves and guttering of the house overhang the boundary by 0.5 metres. Do you think this is going to cause any issues?
 
Aren't all easements listed on the title document? So a title search should bring it up, and a copy of the title should have either been in the Contract of Sale, or should have been checked as part of DD?

The title search was not included in the contract of sale and the easement wasn't noted on the contract too. My solicitor's title search brought it up.
 
I dont think it will be an issue at time of development as you will have side set back controls to follow.... You are benifiting from easment..


If you are Happy with purchase... Go ahead!


If you are not.. Seek legal advice.. Your solicitors should have check titles first before going unconditional.

If I was you.. I will go ahead...
 
The title search was not included in the contract of sale and the easement wasn't noted on the contract too. My solicitor's title search brought it up.

This may mean the contract is defective and this may allow you to terminate the unconditional contract. Seek legal advice asap as there are time limits.

If there is an overhang easement it will effect the sale in the same way you are being effected now.
 
Non disclosure of an easement on the contract can be a defect in title and you can usually terminate up to 2 business days prior to settlement.
 
Just make sure that you are working on the actually dimensions of the block for future development potential not on 'assumed' dimensions based on the current house which as you now know is hanging into the neighbours.
 
Non disclosure of an easement on the contract can be a defect in title and you can usually terminate up to 2 business days prior to settlement.
Just to be crystal clear: is that true even if it's a beneficial easement?
 
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