Understanding Easements and Covenants

Easements and covenants are legal interests registered on a property’s title that dictate how land can be used. They both “run with the land” – meaning they are passed down to successive owners.

What are Easements?

Easements give others the legal right to use portions of your land for a specific purpose. The existence of an easement restricts what you can do on that specific part of your land. You generally cannot build structures (like a pool, shed or permanent extension) on an easement.

Common examples of easements include:

• Utility easements like water pipes, sewage pipes and electricity cables that give providers the right to access and maintain them
• Right of way (carriageway) for a neighbour to travel across a portion of your land to get to their own
• Shared structural elements, like a wall between two apartments
• Conservation easements that restrict development to preserve heritage sites or native ecosystems

They are created legally and registered on the land’s title, so you will know that they are there before you purchase or rent the land.

What are Covenants?

While easements give others the right to use your land, covenants restrict what you can do on your own land. Covenants are listed on the Certificate of Title for the property.

Common examples of covenants include:

• Restrictions on building height, the type of materials used and extensions
• Prohibiting the removal of certain trees or other grassland
• Restrictions on the height of boundary fencing and the materials used

There are many reasons why covenants exist. Common reasons are to maintain native bushland, prevent the blocking of a scenic view, control developmental density and control architectural style to ensure new projects align with the established character of a suburb. It is possible to remove or negotiate a covenant, but doing so is a complicated process that may require a court or Tribunal order in addition to agreement from affected parties.

Easements and covenants are unique to each property and thus require tailored legal advice. If you have any questions about easements or covenants on your property, please do not hesitate to contact us. We are here to help.

DISCLAIMER: This article is for informational purposes only and does not constitute legal advice.