What's an Easement Worth Between Neighbours?

Question: What is the definition of an easement?

 

Answer:  An easement gives a right to cross or otherwise use someone else’s land for a specific purpose.

 

Question: What are the requirements for an easement?

 

Answer: Section 88 of the Conveyancing Act provides that for an easement to be valid it must clearly identify the following: 

 

  1. the land with the benefit of the easement;
  1. the land with the burden of the easement; and
  1. the persons (if any) whose consent to a release, variation, or modification of the easement or restriction is required.

Question: Who is required to consent to an easement?

 

Answer: The owner(s) of the land to be benefited by an easement and the owner(s) of the land to be burdened by an easement will be required to provide their consent to the creation of the easement. However other relevant stakeholders with an interest in the land such as mortgagees or certain lease holders may also be required to provide their consent to the creation of an easement.

 

Strata - Top 10 Frequently Asked Questions

 

Question: What powers does the Court have to create easements?

 

Answer: Under section 88K the Conveyancing Act 1919 (NSW):

 

  1. The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement.
  1. Such an order may be made only if the Court is satisfied that:
  1. use of the land having the benefit of the easement will not be inconsistent with the public interest, and
  1. the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and
  1. all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.
  1. Also note the costs of the proceedings are generally payable by the party who commences the proceedings

Question: What type of compensation can I expect if I go to Court?  

 

The following compensation amounts for easements have been ordered by the Courts:

 

Case Locality Easement Type Approx. dimensions Compensation Paid
A.T.B. Morton Pty Ltd v Community Association DP270447 (No 2) [2018] NSWLEC 87 Hexham Right of Carriageway 370m length x 10m width $262,000.00
Shi v ABI-K Pty Ltd [2014] NSWCA 293 Carlingford Easement to Drain Water 53.61m length x 0.9m width $21,500.00
Gordon and Others v Shaheen and Another [2005] NSWSC 1328 Werrington Easement to Drain Water 2.0m width variable length split across two properties $16,000.00
The Owners - Strata Plan 61233 v Arcidiacono (No 2) [2019] NSWSC 1876 Sydney Easements for repairs, services, overhanging structures and encroaching structures N/A $8,000.00

 

Question: What kind of compensation can I expect by negotiating the easement outside of Court? 

 

The following compensation amounts for easements have been agreed to by the parties without proceeding to Court:

 

Year Locality Easement Type Approx. dimensions Compensation Paid
2019 Castle Hill Easement to Drain Water 47.56m length x 1.00m width $62,800.00 (split between 3 owners and the Owners Corporation)
2020 West Ryde Easement to Drain Water 11.74m length x 1.5m width x  1m depth $17,400.00
2018 Epping Easement to Drain Water 40m length x 1m width $14,600.00
2019 Crows Nest Easement to Drain Water over existing line of pipes Existing section of pipe adjacent to the Lot $9,500.00

 

 

***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.

 

 

Prepared by Bannermans Lawyers

3 August 2020

 

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For more information on this topic or any legal enquiries please contact your Strata Team.

   
   

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