Check easement obligations on land

With easements on land, always check the easement instrument to find what you (or someone else) can and can't do with that land.

The recent Maui pipeline leak gets Farmer Freddy thinking.

He remembers that when he purchased the farm next door, a whole bunch of easements was listed on the title to the property.

As Freddy is planning on planting a paddock of maize on that particular block, he wonders if the easements will prevent him from doing so.

He decides to give Pebbles a call for some help.

"Pebbles," says Freddy, "what are these things called easements that are registered over my land? What do they give people the right to do?"

"Can I still plant my maize over the land where the easements are?"

Pebbles pulls out the documents for Freddy's farm and finds that there are various "in gross" easements registered over Freddy's land, including one in favour of the local water supply company.

"An easement, Dad, grants somebody else the right to do something on your land. In return, you have a duty to allow that person to do it.

"Easements can be granted between neighbouring properties, but an "in gross" easement is instead granted to an entity such as the water supply company or a local authority," Pebbles explains.

Easements are typically created in an easement instrument that records the specific terms between the parties. There are implied terms of easements in the Land Transfer Regulations, but these are often varied or substituted by express terms in the easement instrument.

"So, Pebbles since this easement instrument is registered, does that mean thatthe water supply company can just come onto my land and do whatever they like?" quizzes Freddy.

"Good question, Dad," says Pebbles. "The implied terms in the Regulations give the water supply company the right to enter upon your land to lay, repair or maintain the water pipes.

"However, each easement instrument is different and the key thing is to read the terms of the easement as they will tell you what the water supply company can and can't do."

"You have responsibilities too, Dad. For example, if you plant your maize crop and you hit one of the water pipes in the process, it is likely you will have to repair or replace them."

"But, Pebbles, these cables are deep in the ground. I will only be scratching the surface - after all I'm trying not to drag up too many rocks," he chuckles.

"Dad, again you need to check the terms of the easement instrument. There may be a limit on how deep you can disturb the soil or you may even be prohibited from having a crop above the pipes," she explains.

"Thanks, Pebbles. I'll be sure to check these easements before I start digging up the paddocks to plant my maize."


The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
If you would like more information on any of the topics in this document, please contact your usual Auld Brewer Mazengarb & McEwen adviser.
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