Easements and Covenants:

An “easement” is an encumbrance on Title to land. This means that the rights to the land are somewhat qualified in respect to the subject matter of the easement. For example, an easement may permit an authority to enter the land and perform a duty such as check a water meter to conduct regular maintenance on some piece of infrastructure or service. Easements are commonly created in relation to drainage and sewerage service lines and are placed on the Title at the time of registration.

Other kinds of encumbrances that may appear on Certificates of Title may include “covenants,” which usually prohibit the owner from doing something or require that a certain condition be met before some action can be taken in respect of the land, and “positive covenants,” which mandate that the owner of the land do something and which may place conditions of how that thing is to be done. A “right of way”, as its name suggests, is often an encumbrance on the land that allows a thoroughfare through a specified portion of that land for a particular purpose. A “caveat,” on the other hand, is a warning that the title to the land is encumbered by a caveatable interest, in some other way. This can be by reason of a debt that is owed by the owner where the debt is secured by a charge or due to the existence of some claim of equitable right over the land by a third party.

Dealings with land may involve dealings with these kind of encumbrances to the land. Removing an easement, covenant, positive covenant or right of way will often involve making an objection to it and require all parties that are subject to it to engage in a negotiated process before further steps are taken at law. The existence of a caveat is a very serious thing as it may mean that a person acquiring the land may not have the benefit of that land due to some other claim that a future Court may declare has priority over any other person’s right (in some cases, even a subsequent good-faith purchaser).

Another common notation that will be found on many Certificates of Title are the interests reserved in the Crown Grant. For more information about these, see our section on “Crown Land Interests” section.  

It is important that if an owner of land or a prospective purchaser of realty has any concerns in relation to one or more notations on the Certificate of Title, that that individual seeks legal advice on his rights and possible liabilities.

If you are involved in a dispute involving an easement, there could be a variety of significant legal considerations that need to be weighed before the merits of your legal matter can be determined and a strategy put in place for resolution of litigation. Our property lawyers have been assisting property owners for over a decade and we have the experience and skills needed to guide you through your dispute or legal question.

If you would wish to discuss your easement dispute, you can contact our firm to book a meeting with our property solicitors. Call us on (02) 9233 4048 or send an email to info@navado.com.au. 

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