Rights and obligations under a registered easement

Pebbles advises Freddy about his rights and obligations under an easement registered over the title to a property he owns


Freddy is having a beer with his mates at the rugby club following the Seniors game and having a chat to his mate Donald about setting up a time for him to come and quote him for putting a few paddocks into turnips to help out with any drought problems this season.

He suddenly remembers that when he purchased the runoff next door Pebbles told him there were a few easements registered on the title to the property.  As the turnip crop would be going on that land, he wonders if the easements will prevent him from doing what he wants to do.  He decides to give Pebbles a call for some help.

“Pebbles”, says Freddy, “do you remember when I bought the runoff you told me there were some easements registered on the title.  Do you remember what they were for?  Can I still plant my turnip crop on that land where the easements are?” he asks.

Pebbles pulls out the documents for the run off and finds that there are various “in gross” easements registered over Freddy’s land, including one in favour of the local natural gas company.

“Dad an easement 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 local natural gas company; water or electrical supply company or a local authority”, explains Pebbles.

Easements are typically created from a surveyors plan in the form of an easement instrument that records the location and specific terms between the parties.  There are standard 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 to the natural gas company is on the land does that mean that the company representatives can just come onto my land and do whatever they like whenever they like?” asks Freddy. 

“Good question Dad”, says Pebbles.  “The implied terms in the Regulations give the natural gas 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 company can and can’t do.”

Pebbles continues, “You have responsibilities too Dad.  For example, you need to know exactly where the pipes are located.  If you plant your turnip crop and you hit one of the pipes in the process, it is likely you will have to pay for the repair or replacement.  Not to mention the emergency situation you would be creating.”

“But Pebbles those pipes are quite deep in the ground, I will only be scratching the surface – after all I’m trying not to drag up too many rocks”, he laughs.

“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 planting a crop above the pipes,” she explains.  “I will have a read over the easement again to refresh my memory and call you back to let you know if you can go ahead”.

“Thanks Pebbles I appreciate all your help, once I find out about it I can give Donald a call back and let him know if I am going ahead.  By the way the Seniors won their game at home, we had a great night celebrating!”

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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