What is an easement?

An easement, simply put, grants a right to (usually) the owner of one piece of land, to do something on someone else’s land, with a corresponding duty on the other person to allow him to do it.

Easements like this are sometimes known as “positive easements” because they create a positive duty.

The other sort of easement is a “negative easement”. These easements allow the owner of one parcel of land to stop his neighbour from doing something – for example, “you must not dam the stream that runs from your property to mine so that it prevents me getting the benefit of the water”.

Easement terms

The following legal terms are commonly used in easements:

Dominant tenement
The dominant tenement is the land that has the rights – for example, the owner of the dominant land has the right to go over the neighbour’s land, or the right to prevent the neighbour damming the stream.

Servient tenement
The servient tenement is the land that must cede rights to the dominant tenement – for example, the owner of the servient tenement must allow the neighbour’s car to drive over their land, or must not dam the stream.

Appurtenant hereto
When an easement is “appurtenant”, it means that it belongs to the dominant tenement. So, on the title, it will say:

Appurtenant hereto is a right of way created by Easement Instrument 1234567.3 – 12.5.08 at 10:00 am

Subject to
Servient tenements are described as being “subject to” an easement, and the words on the title document will read:

Subject to a right of way over the part marked B on DP 123/45 created by Easement Instrument 1234567.3 – 12.5.08 at 10:00 am

In gross
Easements must either relate to neighbouring land, or be “in gross”. An easement in gross is granted, not to land, but to a person or company, and is usually associated with utility companies providing services to the land – for example, allowing Telecom to lay telecommunications cables.

How is an easement created?
An easement is traditionally created when someone (usually a lawyer) drafts an “easement instrument” (ie a document) that records exactly what the easement is for, identifies the dominant and servient tenements, and specifies the terms of the easement.

Take, for example, an easement in gross in favour of the Porirua City Council, granting a right to run a sewage main across your land. The document that creates the easement will probably also specify the easement conditions, such as the council’s right to enter onto your property to maintain the sewage main.

That document is then registered either on the title to both the servient tenement and the dominant tenement (in the case of ordinary easements), or just on the title of the servient tenement (in the case of easements in gross) in much the same way as a mortgage is registered.

Sometimes, land may in effect be subject to an easement, even where there is nothing on the title. Such “easements” are usually created by statute (see for example ss 445, 708, and Schedule 16 of the Local Government Act 1974, and s 181 of the Local Government Act 2002, which give local councils the right to construct drains). Once the initial process is concluded, a council’s rights bind all future owners of that land.

Types of Easement

Common easements
The most common types of easement give the owner of the dominant tenement rights:

  • to convey something, eg water or gas pipes, telecom/electricity cables (see also the Electricity Act 1992);
  • to drain water or sewage;
  • to go over neighbouring land (rights of way, for example).

Other sorts of easements
Some other, more unusual, easements include:

  • party wall easements – used in semi-detached or terraced houses that share a wall, and common in old State houses, where each property is entitled to be supported by the wall;
  • eaves encroachment easements – where your house wall is built smack against the boundary and your roof slopes over the boundary.

Easement Requirements

There are certain things that must be present before an easement can exist.

  • There must be servient land. This of course goes without saying because without land to go over, for example, you can’t have a right of way.
  • They must grant a benefit to the dominant tenement or holder of the easement in gross.
  • They must grant precise rights – an easement that grants a right to demand that the owner of the servient tenement “be nice” to the dominant tenement owner probably won’t work!
  • Easements can’t, by their nature, require the owner of the servient tenement to pay money to the owner of the dominant tenement, unless the owner of the dominant tenement is providing some sort of service.
  • Easements can’t grant exclusive occupation rights to the owner of the dominant tenement – something that appears to grant an exclusive right to occupy is probably a lease, rather than an easement.

Changing or Removing Easements

Easements stay on the title, and bind future owners of the land (so they’re not like a private contract, because they are created with reference to the land itself, not the owner).

Sometimes you cannot remove an easement – for example if:

  • removing a right of way would leave the dominant tenement “land-locked”, that is, without access to a legal road; or
  • it is granted as a condition of a subdivision.

It is sometimes possible to remove an easement, when (among other things) there is:

  • agreement between the owners of the dominant and servient tenements; or
  • proof that the easement has become redundant (for example because a legal road has been formed on one of the dominant tenement’s boundaries, so there is no longer any need to drive across the servient tenement).

Conclusion

There is a lot more that could be said about easements: they are an exciting and evolving area of property law.

If you find one on your title, the best advice is to read it, and make sure you understand what it is requiring you or allowing you to do or not to do. If you have any questions, particularly if you are about to buy a property with an easement on the title, ask your lawyer for advice!