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An easement is a legal right to cross or otherwise use someone else's land (or part thereof) for a specified purpose.

The relationship which should be registered soon after the right materialises, is usually by agreement (and formalised between the parties by deed), imposed by an authority or court ordered.

The legal jargon in respect of each title is somewhat confusing, and the following terms are commonly used:

  • benefited lot’ or ‘dominant tenement’ – the land benefiting from the easement
  • burdened lot’ or ‘servient tenement’ – the land which is burdened by an easement
  • grantor’ is the owner of the servient tenement
  • grantee’ is the owner of the dominant tenement
  • right of way’ is a type of easement
  • right of way in gross,’ also known as a statutory right of way, is created in favour of an authority like Sydney Water or the local council (pursuant to s88A Conveyancing Act 1919) - a right of way in gross does not have a dominant tenement

Examples of easements and restrictions on the use of land, include:

  • For water drainage or sewerage infrastructure
  • Right of way for access, by a neighbour to access their 'land-locked' land
  • To avoid boundary realignment – in the case of encroachment of land by a neighbour
  • To protect views

Unregistered easements and restrictions cause some concerns because they are usually based on an agreement entered between neighbouring property owners but are not registered (or available to be searched on public record). If you purchase a property with an unregistered dealing, you will must still comply with it despite it having been entered by the previous owner. This may cause considerable restrictions in the manner in which you can use your land. You may be able to sue the previous owner for damages.

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