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GJA Law – Sydney’s Trusted Easement Lawyers

Easements in Sydney

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Easements are a significant legal matter that affect many individuals and families in Sydney. At GJA Law, we provide clear, practical advice and tailored services designed to protect your interests. Our approach combines local expertise, transparency in fees, and a commitment to simplifying complex legal processes.

What Are Easements?

An easement is a legal right that allows someone to use or restrict the use of another person’s land for a specific purpose—without owning it. The land that benefits from the easement is called the dominant tenement, while the land burdened by it is the servient tenement.

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    Easements are registered on the property title and bind future owners, making them a permanent feature of the land unless formally removed or varied. They are not personal agreements; they run with the land itself.

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    Common Types of Easements in Sydney

    The most frequently encountered easements in Sydney include:

    • Right of Carriageway: Grants access across a neighbour’s land (e.g., a shared driveway or rear lane).
    • Drainage Easement: Allows stormwater or sewer lines to pass through a property—common in older suburbs with rear-lot services.
    • Utility Easements: For electricity, gas, or telecommunications infrastructure, often owned by government authorities like Ausgrid or Sydney Water.
    • Light and Air Easements: Rare but used to prevent neighbouring buildings from blocking natural light or ventilation.
    • Support Easements: Essential in multi-storey developments, ensuring structural support between adjacent buildings.

    These easements can significantly affect development potential, building design, and property value.

    How Easements Are Created

    Easements in NSW can be created in several ways:

    1. Express Grant or Reservation: The most common method—recorded in a deed or transfer and registered on title via NSW Land Registry Services (NSW LRS).
    2. Implied Easement: Arises by necessity (e.g., landlocked property requiring access), though rare and difficult to prove.
    3. Prescription: Continuous use of land for 20+ years without permission may lead to a prescriptive easement—but this is increasingly uncommon due to modern title systems.
    4. Statutory Easement: Created by legislation, such as under the Water Management Act 2000 (NSW) for drainage works.

    In practice, virtually all easements in Sydney today are expressly granted and registered—ensuring clarity and enforceability.

    Easements and Property Development

    For developers, easements can make or break a project:

    • A drainage easement across the rear of a site may prevent basement excavation or pool installation.
    • A shared driveway easement may limit building footprint or access for construction vehicles.
    • Overlooking an easement during due diligence can lead to council refusal of a Development Application (DA) or costly redesigns.

    At GJA Law, we advise developers to:

    • Conduct thorough title and Section 10.7 planning certificate reviews.
    • Engage surveyors to map easement locations against proposed plans.
    • Negotiate easement modifications or releases where feasible (with neighbour and authority consent).
    • Design around easements or seek dispensations through DA conditions.

    Proactive easement management is essential to maintaining project viability and timeline certainty.

    Buying or Selling Property with an Easement

    Easements are disclosed during conveyancing via the title search and planning certificate. Buyers should understand:

    • Location and dimensions of the easement (shown on the title diagram).
    • Practical impact (e.g., “No structures to be built within the easement”).
    • Who benefits (e.g., a neighbour, Sydney Water, or the local council).

    While easements rarely void a sale, they can affect price negotiations. Sellers must disclose known easements—failure to do so may give buyers grounds to rescind the contract.

    Our conveyancing team at GJA Law ensures clients fully understand easement implications before exchange, avoiding post-settlement surprises.

    Rights and Obligations of Property Owners

    Servient tenement owners (burdened land):

    • Must not interfere with the easement (e.g., block a driveway or build over a sewer line).
    • Generally cannot charge the dominant owner for use—unless agreed separately.
    • Retain ownership and can use the land, provided it doesn’t obstruct the easement.

    Dominant tenement owners (benefiting land):

    • Have the right to use the easement for its defined purpose.
    • Must not overburden it (e.g., using a pedestrian easement for vehicle access).
    • Usually responsible for maintenance, unless the deed states otherwise.

    Misunderstandings about these roles are a leading cause of neighbour disputes.

    Disputes and Issues Involving Easements

    Common easement disputes in Sydney include:

    • A neighbour building a shed or fence within an easement.
    • Disagreements over maintenance costs for shared access ways.
    • Developers seeking to relocate or extinguish easements for new builds.
    • Council or utility authorities needing access for upgrades or repairs.

    Resolution options include:

    • Negotiation and Deed of Variation (to modify or remove the easement).
    • Mediation through NSW Fair Trading or Community Justice Centres.
    • Legal action in the Supreme Court or NCAT for injunctions or damages.

    Early legal advice can often resolve issues without litigation.

    Common Easement Mistakes to Avoid

    1. Assuming fences mark true boundaries or easements – They often don’t.
    2. Building over an easement without consent – Risking council orders or demolition.
    3. Ignoring easements during feasibility studies – Leading to unviable developments.
    4. Failing to register a private easement – Leaving it unenforceable against future owners.
    5. Not checking for statutory easements – Such as those held by water or energy providers.

    At GJA Law, we help clients avoid these errors through thorough due diligence and strategic planning.

    Our Services

    GJA Law supports Sydney clients in all aspects of Powers of Attorney & Guardianship, such as:

    • Drafting and reviewing documents with care
    • Explaining rights and responsibilities in plain language
    • Assisting with negotiations or dispute resolution
    • Coordinating with financial and professional advisers
    • Managing each step smoothly through to completion

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    Why Choose GJA Law?

    • Straightforward, practical legal advice
    • Flexible pricing with fixed fees for common matters
    • Broad experience across property, family, and estate law
    • Smart use of technology for accuracy and speed
    • A service model that puts your needs first

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    Contact Us

    If you are dealing with easements in Sydney, contact GJA Law today. Our experienced lawyers will guide you through the process with confidence and provide the support you need.

    Common Easements FAQs

    What is an easement and why does it matter?

    An easement is a legal right that allows someone to use part of another person’s land for a specific purpose, such as access, drainage, or utilities. Easements are registered on title and bind future owners, meaning they can affect how land is used, developed, or sold. Understanding easements is critical because they can limit building works, impose maintenance obligations, or give third parties ongoing access to your property.

    What are the most common easements affecting Sydney properties?

    The most common easements in Sydney include rights of carriageway (shared driveways or access lanes), drainage and sewer easements, and utility easements for electricity, gas, or telecommunications. Older suburbs often contain drainage easements running through backyards, while higher-density areas may have multiple overlapping easements supporting shared infrastructure. Each type carries different restrictions and responsibilities.

    How can easements impact property development?

    Easements can significantly influence whether a development is feasible. A drainage or sewer easement may prevent excavation for basements, pools, or foundations, while access easements can restrict building footprints or construction staging. Overlooking easements during due diligence can result in council refusal, redesign costs, or project delays. Early legal and surveying advice helps developers plan around these constraints or explore modification options.

    Can an easement be removed, relocated, or changed?

    Yes, but only in limited circumstances. Most easements can be varied or extinguished by agreement between affected parties and registered with NSW Land Registry Services. If a neighbour or authority refuses consent, an application may be made to the Supreme Court in specific situations. Because these processes can be complex and time-consuming, careful negotiation and legal advice are essential.

    What should buyers know before purchasing a property with an easement?

    Buyers should review the title plan and planning certificate to understand the easement’s location, size, and purpose. It’s also important to assess the practical impact—such as restrictions on building, fencing, or landscaping. While easements are common and not necessarily deal-breakers, they can affect future plans and property value, making informed advice critical before exchange.

    How can disputes involving easements be resolved?

    Easement disputes often arise from unauthorised building, blocked access, or disagreements over maintenance responsibilities. Many issues can be resolved through negotiation or mediation, particularly where relationships between neighbours are ongoing. Where this fails, legal action may be required to enforce rights or prevent interference. Early advice often helps resolve disputes before they escalate into costly litigation.

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