What Is A Property Easement? Rights, Risks And Common Disputes Explained

RHC Solicitors
12 minutes ago
5 min read

When you’re buying property in Queensland, it’s easy to get overwhelmed with the legal and industry jargon. Easement is a word you are likely to hear thrown around a lot on your property journey, from your first conversation with the real estate agent, and well into the conveyancing process.

Likewise, if you are already a property owner you are probably curious to know what might show up on a title search of your land and how it could effect your property rights.

Let's break down exactly what an easement is, and some of the different kinds of easements you might encounter.

In This Article:

What Is An Easement?
Types Of Easements
What Is The Difference Between Public Easements And Private Easements?
What Is The Difference Between Positive Easements And Negative Easements?
How Do I Find Easements On My Property?
Can I Remove An Easement From My Property?
Do Sellers Have To Disclose Easements?
More Questions?

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What Is An Easement?

An easement is a legal right that permits a person, organisation or authority to use a defined portion of someone else’s land for a specific purpose.

Examples include the right to cross through the land for access to a rear block, or for drainage, sewerage or other essential services.

There will be one or more party benefitting from the easement, and one or more party that is burdened by the easement. The land with the benefit of the easement is known as the ‘dominant tenement’ and the land burdened by the easement is known as the ‘servient tenement.’

Types Of Easements

There are different kinds of easements, and they all effect property in different ways. Some of the common types of easements we encounter in conveyancing practice include:

Right Of Way Easements

This is the right to use part of the neighbouring property as a driveway to access another block (usually a rear block). This type of registered easement will appear on the title.

If an easement like this is on your title, it is normally possible to perform further searches to show exactly what was lodged when the easement was registered, detailing the rights of each party.

Statutory Easements

A statutory easement may be for essential services like telephone lines, water, gas, drainage or sewerage. Also referred to as ‘easements in gross’, they are not usually listed on the title, and more thorough searches are required to identify specific statutory easements burdening the property.

Other Types Of Easements

Here are some other less common kinds of easements:

A prescriptive easement, where the person’s property has been used for twenty years or more without secrecy, permission or force. Note that proving this type of easement is very difficult under the Property Law Act 2023, and was more common prior to 1974.

An implied easement can also occur where the easement rights are not expressly granted but are implied through common law or statute. These types of easements are rare, and it should be noted that in Queensland, easements cannot arise by prescription.

What Is The Difference Between Public Easements And Private Easements?

You may hear the terms public easement or private easement.

Private easement normally refers to an agreement between adjoining property owners, whereas public easement refers to a statutory easement or easement in gross.

What Is The Difference Between Positive Easements And Negative Easements?

You might also hear the terms positive easement or negative easement.

A positive easement allows something to be done, such an access easement permitting entry into someone else’s land.

A negative easement refers to a type of encumbrance that prevents something being done that a land owner would normally be able to do (e.g. building above a certain height).

How Do I Find Easements On My Property?

Part of a conveyancer’s job is to perform searches on the property you are purchasing to reveal easements or other encumbrances recorded on the title. If we discover an easement on the property title, we will notify you and any recommend further investigation if necessary.

Before you buy property, particularly if you plan to renovate or develop in the future, it is important to carefully review the Seller Disclosure Statement (Form 2) provided by the seller prior to signing the contract.

Under Queensland’s new seller disclosure regime, the Seller Disclosure Statement (Form 2) must disclose certain property information, including registered easements and other encumbrances that may affect how the land can be used or developed. Understanding these disclosures early can help you identify potential restrictions, plan works appropriately, and avoid unexpected issues after settlement.

Can I Remove An Easement From My Property?

Easements are tied to the land, not the owner, so they continue to apply regardless of who owns the property.

To remove an easement from a property, the grantor and grantee of the easement can agree to do so in writing, and then the relevant forms must be lodged with the Titles Office. If the parties cannot come to an agreement, the party wishing to remove the easement can seek a remedy by application to Court.

If you are wanting to remove an easement from your property, you should seek experienced property advice from a dedicated lawyer.

Do Sellers Have To Disclose Easements?

The short answer... Yes!

In Queensland, sellers are required to disclose easements to prospective buyers in both the Contract of Sale and the Seller Disclosure Statement (Form 2). This obligation applies whether the easement is registered or unregistered, and regardless of whether the seller believes it has a practical impact on the property.

Easements and other encumbrances can affect how a property is used, developed or enjoyed. As a result, full and accurate disclosure is critical to ensure buyers can make an informed decision before entering into a contract.

If a seller fails to disclose an easement or other relevant encumbrance, the buyer may have legal rights, including the ability to terminate the contract, and in some cases may have a right to seek compensation for losses suffered. Whether these rights apply will depend on the nature of the non-disclosure and the terms of the contract.