Easements in Queensland: what they are and how they affect your property

The two blocks: burdened and benefited

An easement usually involves a servient tenement — the land carrying the burden — and a dominant tenement, the land that gets the benefit. A rear block reached by a driveway over the front block is the classic example: the rear lot has the right of way, the front lot has to allow it.

Easements in gross are different: they benefit an authority rather than another block. Sewer, water, electricity and telecommunications easements are typically in gross and are held by the service provider.

Common types you will see on Queensland titles

The easement document itself sets out the terms, and the terms matter more than the label:

• Right of way or access easement — vehicle or foot access across another lot
• Drainage easement — stormwater flowing across or under the land, often to council
• Sewerage and water supply easements in favour of the local service provider
• Electricity and telecommunications easements for cables, pits and substations
• Support and party wall easements, common in duplexes and attached dwellings
• Statutory covenants — not easements, but often registered alongside them and restricting what can be built or where

What it means if your land is burdened

You still own the land under the easement, and you can generally use it in ways that do not interfere with the easement rights. What you usually cannot do is build over it, block it, plant heavily on it or change the levels.

• Council and service providers will refuse building approval over a sewer or drainage easement, or require a build-over approval with engineering conditions
• Obstructing a right of way — a fence, a parked trailer, a locked gate — can be actionable by the benefited owner
• Maintenance and cost-sharing depend on the easement document; many older instruments are silent, which is a frequent source of neighbour disputes
• The easement area still counts as part of your lot for rates and land tax, but it can reduce market value and limit your building envelope

Checking easements before you buy

A title search shows registered easements as encumbrances, and the registered plan shows where they run. But the plan alone does not tell you the terms — you need a copy of the actual easement instrument.

Under Queensland's seller disclosure regime, the seller's Form 2 disclosure statement must include the title search and plan, so encumbrances should be visible before you sign. Read them. A buyer who signs and then discovers the driveway or the shed sits on an easement usually has no remedy after settlement.

• Ask for the easement instrument, not just the plan
• Walk the block and compare what is built with where the easement runs
• For a rear lot, confirm the access easement is registered rather than an informal arrangement with the neighbour
• Check for unregistered service infrastructure — a sewer main crossing the land without an easement can still restrict building

Creating, varying and removing an easement

Easements are created by registered instrument, usually by agreement between the owners or as a condition of a subdivision approval. Both owners sign, mortgagee consent is needed, and the document is lodged with a plan defining the easement area.

Removing one is harder. A surrender requires the benefited owner to agree, and they rarely will without payment. Where agreement is impossible, the Property Law Act allows an application to the Supreme Court to extinguish or modify an easement — for example where it has become obsolete or no longer has practical benefit. That is a genuine litigation exercise, so it is worth trying to negotiate first.

When there is no easement but you need access

If a lot is landlocked or cannot be reasonably used without access over a neighbour, the Property Law Act allows the Court to impose a statutory right of user on terms it considers reasonable, usually with compensation to the burdened owner. It is discretionary and not cheap, so it is a last resort rather than a plan.

If you are buying a block with an easement, planning to create one as part of a subdivision, or in a dispute with a neighbour about a right of way, call 0488 340 853 and we will look at the title and the instrument before you commit to anything.

Easements in Queensland — common questions