Buried in the title details of nearly every property contract are references to easements, covenants and sometimes rights of way, terms that can sound like legal formalities but can genuinely affect what you’re able to do with a property, both now and in the future. Here’s what they actually mean in practice.
What Is an Easement?
An easement is a legal right that allows someone, often a utility provider, a council, or a neighbouring property owner, to use part of your land for a specific purpose, even though you own the land. Common examples include drainage easements allowing stormwater infrastructure to run beneath a property, easements for underground services like sewer or power lines, and access easements allowing a neighbouring property to cross part of your land to reach their own.
How Easements Affect What You Can Build
The most practical impact of an easement for most owners is that building over or too close to an easement area is often restricted or prohibited entirely, since structures could interfere with the service or right the easement protects. This can affect where you’re able to place a shed, extension, pool or driveway, so it’s essential to understand exactly where any easements sit on a property before finalising renovation or building plans.
What Is a Restrictive Covenant?
A restrictive covenant is a condition attached to a property’s title that limits how the land can be used or developed, often originally imposed by a developer when an estate was first subdivided. Covenants can cover things like minimum building sizes, materials and colours for external finishes, restrictions on secondary dwellings, or limits on the types of structures permitted. Unlike council planning controls, covenants are private legal restrictions attached to the title itself, and can sometimes be more restrictive than council rules.
What Is a Right of Way?
A right of way is a specific type of easement that grants someone the legal right to pass across part of a property, commonly used where a landlocked property needs access across a neighbouring lot to reach a public road. If a property you’re considering has a right of way in favour of a neighbour, or benefits from a right of way across someone else’s land, it’s important to understand exactly what this means for access, maintenance responsibilities and any restrictions on use.
Where to Find This Information
Easements, covenants and rights of way are recorded on a property’s title and are generally disclosed in the Section 10.7 planning certificate and title search included as part of a NSW contract of sale. It’s worth reviewing this information carefully, or having your solicitor specifically explain it, rather than assuming a clean-looking property has no title restrictions.
Why This Matters Before You Buy
For buyers with specific plans, whether that’s a granny flat, a pool, a shed, or a significant renovation, checking for easements and covenants before making an offer can prevent discovering, after settlement, that your plans aren’t actually possible on that particular block. It’s a relatively simple check that can save significant disappointment and cost later.
Can Easements and Covenants Be Removed or Varied?
In some circumstances, easements or covenants can be modified or removed, generally requiring formal legal processes and, in some cases, agreement from parties who benefit from the restriction. This isn’t guaranteed and can be a lengthy, costly process, so it’s generally more practical to work within existing restrictions than to assume they can be removed to suit future plans.
Frequently Asked Questions
Do all properties have easements? Many do, particularly for drainage or utility services, and having an easement isn’t unusual or necessarily a problem. What matters is understanding exactly what it covers and how it affects your specific plans for the property.
Can I be compensated if a utility company needs to access an easement on my property? This depends on the specific circumstances and the terms under which the easement was created. It’s worth discussing any concerns with your solicitor if this becomes relevant to your situation.
Are covenants the same as council zoning rules? No. Covenants are private restrictions attached to a property’s title, often set by the original developer of an estate, while zoning is set by council and governs broader land use. A property can be subject to both simultaneously, and covenants can sometimes be more restrictive than zoning alone.
How do I find out if a property has a right of way? This information is included in the property’s title search and Section 10.7 planning certificate, both of which form part of a standard NSW contract of sale, and your solicitor can explain exactly what applies.
Can I build a granny flat if there’s an easement on my block? It depends on where the easement sits relative to where you’d want to build. In many cases, there’s enough of the block clear of easements to still accommodate a secondary dwelling, but this needs to be confirmed for the specific property and plan.
Have Specific Plans for a Property You’re Considering?
If you’ve got renovation, extension or development plans in mind, our team can help point you toward the right checks before you make an offer.
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