Wednesday, 26 October 2011

Easements – Who Makes the Bed in the Morning?

Easements – Who Makes the Bed in the Morning?

Easements, do you understand how they affect you?
An easement is the right of one land owner (dominant tenement) to utilize another persons land (servient tenement) for certain beneficial purposes.  Two examples are a Right of Way and an Easement for Services such as drainage, sewerage, telephone and electricity. Easements are usually created in writing using a Section 88B
instrument, which is then registered at the Land and Property Management Authority and noted on both Certificates of Title. Therefore, the owner of the dominant land has an equitable interest over the serviant land.
The law can be fairly uncertain in regards to who is responsible for maintenance and care of the easement. The common law states that if the person holding the dominant tenement wants the easement repaired or maintained, they usually have to attend to it themselves. Therefore, they are entitled to enter upon the land to repair or maintain the easement, but not to upgrade or improve the easement.
Although the holder of the serviant tenement is not obliged to maintain or repair the easement, the dominant tenement may lodge a positive covenant on title,compelling them to attend to repairs. However, this requires agreement and could potentially be time consuming and expensive.  Also, a positive covenant does not bind future successors on title of the servient land.
So who makes the bed in the morning? Maybe it’s a shared responsibility.
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Nick Johnson specialises in Conveyaning and related matters and can assist you if you are buying or selling your home. Feel free to phone Nick on 6333 4400, or call into our office at Level 1, Suite 4, 90 Keppel Street Bathurst for an appointment.