Easements - Ownership and rights

[Programmer]

Hi guys, via a search I found this post by SunStone May 2003:

What is an Easement ?
An Easement is a right that a person or entity, such as the Council, has over property owned by someone else. It is a right to use the land for a specific purpose, for example to maintain sewer or water mains. The owner of the land may still use the land, so long as that use does not interfere with the righs specified. For example, you could not build a garage or pool on an easement for sewerage or water mains because that would deny the access specified.
Because easements are an interest in part of a parcel of land, they have to be accurately measured and registered by the Registrar of Titles, just like any other interest in land. They are, in fact, an "encumbrance" on the original land title.

Questions:

a) Subect to the said 'right' of someone else to carry out maintenance etc of an easement that is on my property - I actually 'own' the easement. That is, it is my land, but I must give access to those that hold the 'rights'?

Assumming above is correct:

b) If the next-door neighbour runs a Telstra line up the easement (on my property) I should be able to ask for its removal. (BTW, I'm being reasonable here, the line itself is becoming a pain with my plans.)

Comments:

I guess Telstra would say they can legally run this line because they have a right to the easement? I guess it comes down to whom the easement is 'owned' by and exactly what 'rights' authorities have? Does, or can, a 'right' to an easement on one property mean an authority can apply it next door as well? Assuming it's my property, I'd think not. Any thoughts or experience out there?

 

[Raddles]

http://www.lawlink.nsw.gov.au/lrc.nsf/pages/DP22CHP6

the above paper talks about the issue in a number of different Australian jurisdictions - not sure where your property is though.

I think you will find that Telstra can utilise the easement - as that is the purpose of them to allow services to properties in a subdivision.

 

[jrc]

What are the terms of your easement? How is it described on your title? eg an easement to drain water would not be for telecommunications

The easement generally should also indicate what land is to be benefited.

 

[Raddles]

Hi there
I think you will find the easement is not that specific - they are normally framed something like - rights and interests reserved to the Crown by Deed of Grant no. # -
or the land is described in Certificate of Title # subject to the covenants reservations easements and interests listed ..

 

[Firsthomelooker]

The easement will seem nonspecific on the title search/CT but there will be a registered dealing number listed, ask your solicitor to search for this registered dealing and you can read the detail regarding the terms of the easement.

Programmer, to your questions:
You do not own the easement. You also do not own your land in a legal sense. You own an interest in the land. Your interest is subject to any other interests in this land, in this case an easement which is a right over 'your' land owned by someone else.

If the next door neighbour runs a telstra line through the easement, provided that they (or telstra) own the easement and it provides for that particular use then they are not obliged to remove the line at your request.

 

[Programmer]

Thanks for the replies guys.

Update: South-East water own assets in the easement (sewer pipes). From what I can tell nobody else has an 'interest'. Whether or not that changes anything I'm unsure at present - I'm researching further...

 

[Raddles]

Hi again Programmer
You may want to find out if South East Water has been approached by Telstra to use the easement - if it has - you probably can't take the matter further.

On a related point - relatives of mine live in a small subdivision which services their property and the adjoining owners have a right of way over the drive to reach their properties.

The various parties have been in dispute since my relatives wanted to build a granny flat on their property and anything and everything is objected to.
My relatives wanted to have gas put onto their property via the right of way - one neighbour objected saying it was a carriage way only and couldn't be used for that purpose - they were wrong. The right of way could also be used by the gas company to get their gas lines to the property.
thanks