Whether you own a property or are about to purchase one, it is important to conduct a search of the applicable title to ascertain the true state of the title to the property. So, if you intend buying a property you need to know what easements are registered on the title.
Any easement so registered can be a “benefit easement” over an adjacent property, for example, giving the owner of the property you intend to buy the right to pass ‘to and fro’ over that other property. In this situation, the property you intend to buy is the “dominant tenement.”
Alternatively, the easement so registered can be a “detriment easement” over the property you intend to buy, giving an adjacent property the right to pass ‘to and fro’ over the property you intend to buy. In this situation, the property you intend to buy is the “servient tenement.”
It is important to have your conveyancing solicitor obtain a copy of such “rights of passage” easements and relevant survey plans, so that you can read them and thoroughly understand them.
For example, it is usual that the registered easement states that the dominant tenement is responsible for maintaining the easement in a passable state which implies that passage ‘to and fro’ over or across the easement can be done safely. However, there are cases where the servient tenement has the responsibility to maintain the easement such that safe passage ‘to and fro’ over or across it can occur safely.
The financial cost of an easement maintenance obligation can vary widely, depending on the nature of the surface of the easement, the incline of the land over which it passes, the erodibility of the land, and the propensity of the land to vegetate to an extent where pass ability might be compromised.
What is a safe passage will be determined objectively by the Supreme Court, if necessary, if the party responsible for ensuring safe passage has either done things to the easement to obstruct or impede safe passage or has not maintained the surface of the easement sufficiently to ensure safe passage.
For example, it might be that ignoring the maintenance obligation has allowed the surface of the easement to deteriorate so badly that it cannot be made safe, leading to an action in the Supreme Court by the landowner with the benefit of the easement against the landowner with the maintenance obligation seeking an order that the latter construct stairs across the surface of the easement. This can be an horrendously expensive exercise both in terms of court costs and the cost of construction of the stairs.
Need support?
Ensure you are prepared with personalised legal support. Contact Jim Wilson, a Mobile Business Lawyer on 0415 645121 for a no-cost, no-obligation phone call to discuss your concerns and learn how his come-to-you legal service can assist you. Want a face-to-face meeting? Jim Wilson will come and meet you at a convenient location, whether that is your work, home or a local cafe.