Litigation & Disputes

Easements and Restrictive Covenants - Easement in Gross, Dominant Tenement, Servient Tenement


Brisbane Lawyers

Aitken Whyte Lawyers Brisbane - Litigation and Property Dispute Lawyers And Solicitors for Brisbane, Queensland

What is an Easement?

An easement is the right to use a section of land in a particular way. Property easements over land can give someone the right to use the land in a particular way even though they are not the land owner. Reasons for granting an easement over land can include for example, access, drainage, sewerage, or supply of water or gas.

What is a Restrictive Covenant?

Restrictive covenants restrict the use of a lot and do not necessarily benefit another lot. These are only capable of registration in Queensland if they are in favour of the State or local government. 

What is an Easement in Gross?

An ‘easement in gross’ is an easement for the benefit of an entity which is not a neighbouring property owner. Examples of this are the service easements to Energex, or the local Council.

If an authority has an easement registered over your lot then they will have the right to access the easement to maintain or repair the easement land or their equipment on the land. You cannot interfere with their access to the easement. For example, you cannot build on the easement, or erect a fence to keep them out. If you do prevent access, action can be taken against you. The authority may have the right to destroy your building structure on the easement land to create access.

What is a Right of Way Easement?

An easement can exist with a neighbouring property, granting a lot owner access to another lot, but only for the purposes described in the easement. An easement could be granted for access or right of way, so a person can access their property by accessing a specific area of their neighbour’s property.

The lot with access to an easement on a neighbouring lot is known as the “dominant tenement” (the benefitted lot). The lot with an easement on the property granting access to a neighbouring lot is known as the “servient tenement” (the burdened lot).

An easement does not grant the right of possession of the property. The owner of the benefitted lot can only use the easement for the purposes described. If they begin to use the property in a manner not provided for by the easement, the owner of the burdened lot can prevent their neighbour from using the land in an inappropriate manner.

If you are the owner of the benefitted lot and the burdened lot owner interferes with your right to use the easement, then you have a right to remedy.

Remedy - Abatement

Abatement is the right to abate the interference of the easement. This means if something is obstructing the use of an easement, the person benefitting from the easement has the right to remove the obstruction. For example, if the burdened lot owner erects a locked gate, the benefitted lot owner may cut the lock for access to the easement. 

The benefitted lot owner must ensure that:

  1. the force used is reasonable;
  2. it is not likely to be a breach of peace; and
  3. no injury to the public is caused.

Though the benefited owner is in their rights to exercise abatement, the Courts do not encourage it. If you believe your access to an easement is being restricted, call our office today to ensure any action you take is within your rights.

Remedy – Legal Action

A benefitted lot owner being prevented from accessing an easement can commence legal action in court. You can sue for damages, nuisance or seek an injunction against the owner of the burdened lot.

Who is Responsible for Maintenance?

Normally a grant of easement does not impose any obligation on the property owner to maintain the easement to a certain standard. You are only required to refrain from obstructing or preventing access to someone who has the benefit of the easement.

The person permitted to use the easement must perform any necessary maintenance to ensure the land can be used for its purpose. For example, your neighbour with an easement granted for access has the right to enter the land within the easement and maintain the area to a condition suitable for use only.

Can I Modify or Extinguish Easements and Restrictive Covenants?

Under s 181 of the Property Law Act 1974 (Qld), the court has the power to modify or extinguish an easement or restrictive covenant. Particular grounds must be satisfied, including but not limited to:

  1. a change of circumstances that renders the easement or restriction unnecessary (for example, change in the owner of a lot); or
  2. continued existence of the easement or restriction interferes with the land owner’s reasonable use;
  3. continued existence of the easement or restriction is contrary to public interest; or
  4. the proposed modification or extinguishment will not substantially affect the person entitled to the easement.

Focused on Results

It's essential you have experienced solicitors when dealing with an easement, restrictive covenant, or a dispute about one. If your right to use an easement has been interfered with, you own a burdened lot and would like to prevent inappropriate use of the easement, or you wish to modify or extinguish an easement of restrictive covenant, our commercial law team will make sure your rights are protected.

Aitken Whyte Lawyers Brisbane can assist you with all property and land disputes. Call today to discuss your needs.

Office Location and Contact Details

Brisbane
Aitken Whyte Lawyers
Level 2, 303 Adelaide Street, Brisbane
Ph: +617 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au


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