Focus on Title Encumbrances: Easements

Property Law: 14 May 2025

Author: Victoria Agahi - Our People

What is an easement?

An easement gives specific rights over property to a person or entity who is not an owner of that land.

Whilst easements rights can be attached to a specific person or entity (called easements in gross), they are generally granted for the benefit of a specific property. This property would be called the “benefitting” property, and the affected property would be called the “burdened” property.   This is done so that the benefit of the easement can  “run with the land” and be enjoyed by all future owners of the benefitting property.

What types of rights does an easement give?

Each different type of easement can grant a different type of right.  The most common easements are the following:-

• Carriageway (right of way) easements grant a right to travel across the burdened property.
• Service easements generally are granted in favour of a local authority, permitting infrastructure to run through the land affected by the easement.  Examples include Power easements for telecommunication lines or sewerage and drainage easements.
• Easements of support arise when two or more properties share a common wall or other structure for stability.  These easements prevent a property owner from doing anything to the shared structure that may impact its structural integrity.  Examples include party-wall easements between two adjacent terrace houses, where both houses are burdened by and benefit from easement of mutual support.   
• Easement for Light and Air are particularly important in high density areas.  This is an evolving area, and the extent of the right to light and air will vary on the benefitting property’s individual circumstances (including design, and how it has historical used the existing light and air).

The exact rights granted by an easement can be left to general interpretation (based on historical rights granted), or can be tailored to individual circumstances via a written agreement.  For example, an easement that is just recorded on a title’s plan as “carriageway easement” would generally be interpretated as working 24 hours, for all kinds of transport.  Comparatively, a more bespoke easement could restrict that access to, say, pedestrian access only between 9:00 a.m. and 12:00 p.m., on weekends. 

How does it affect the owner of the burdened property?

An easement will prohibit the owner of the burdened property from doing anything which may restrict the beneficiary from enjoying the use of the easement.  For example, an owner may:

• be required to maintain an access path in safe working condition;
• be prohibited from restricting access to the property by the beneficiary of the easement;
• be prohibited from building over land affected by a sewerage and drainage easement.

Additionally, for service easements, the easement may also give the beneficiary the right to upgrade and complete works on the burdened property – examples could include upgrading telecommunications lines located on your property,  or underground pipes in the easement area.

It should be noted that an easement does not necessarily need to be recorded on a title to a property to be binding against the registered owner.    In certain circumstances, an unregistered easement will survive a sale or transfer to a new owner.

How are easements created

Easements are created one of four ways:

• By Express Grant or reservation: via a written agreement or deed.  This includes:-
  • easements created by written agreement;
  • easements created in the course of registering a plan, such as a plan of subdivision; and
  • by reservation - where an owner transfers a property reserving particular rights over the property being transferred.

• By long user/prescription:  by using the land for more than 20 years without permission, but also without secrecy or force.  It operates similarly to adverse possession.  Once the right is acquired, it can be registered on the Title to the property.

The accidental creation of an easement can be avoided by entering into an appropriate written agreement with the user setting out that the access/use they are making of the property is limited.

It should be noted that easement rights by long-user cannot be created where the burdened and benefitting land are in the same ownership

• By Implication: this is often seen in relation to easement of supports/subdivisions.    Examples can also include easements of necessity – which are easements granted in circumstances where an owner needs access to a particular service and lacks other reasonable means of obtaining it.  Easements of necessity can include an easement of support, carriageway (if land is landlocked) or for a service.

Registering an Easement on Title

The recording of an easement on a title can happen one of three ways:

1. By direct application to the titles office;
2. During the process of registering a plan of subdivision (planning permit); or
3. By court order (which will direct the titles office to record the easement).

Note that options 1 and 2 requires the consent of all persons with an interest on the property.

Removing an easement

Easements can be modified or removed from a title in the following ways:-

1. By direct application to the titles office, with the consent of the person benefitting from the encumbrance.
2. By planning permit – under a combination of s23 of the Subdivision Act 1988 and the Planning and Environment Act 1987.
3. By court process – showing that the easement has been abandoned.  Note that the courts look for very strong evidence that the easement has been intentionally abandoned, so this can be a difficult hurdle to meet.

An easement will also end if the same person or entity owns both the burdened and benefitting land.

Navigating easements and enforcing your easement rights can be a complex and time-consuming process, involving both legal and practical considerations.  Our experienced team can assist to navigate this space and help achieve your desired goals and outcome.