Rights of way, draining sewage
An easement is an instrument registered on the title to a property that allows another party, usually the owner of a neighbouring property, to use the part of the first-mentioned property for the particular purpose specified in the easement. In this article, we summarise the most common types of easements, and the parties' respective rights and obligations (including repair and maintenance obligations), and what can happen if there are disputes between the parties.
Types of easements
The most common form of easement is a right of way. These are often used where two neighbours share an area that serves both properties such as a driveway. Other easements include rights to drain sewage and water, and to convey gas or electricity. These last two rights are common where different utilities need to cross through or under a person’s property to connect to another party's property.
These easements are registered on a record of title for the benefit of one or more other neighbouring landowners. Landowners who have the benefit of an easement will also have an interest registered on their title noting that their land has the benefit of an easement.
Some easements, called ‘easements in gross,’ are registered against a record of title for the benefit of a local or territorial authority such as your local council or for utility companies. Easements in gross are commonly used to facilitate local councils’ installation of water and sewage, and connecting the drain and sewage systems from roads to each individual property. In respect of a utility provider, an easement in gross allows the provision of electricity to a number of properties from the main grid.
Who is responsible for maintenance and repairs?
Disputes most commonly arise when it comes time to repair a shared driveway, or when a pipe bursts and a water easement is disrupted and one or more properties find they are without water. Often the first question for parties involved in this situation is – who is responsible for the cost?
The Land Transfer Regulations 2018[1] set out the rights, powers and obligations of parties in respect of easements. Where more than one party has use of the easement, each party is responsible for an equal share of the costs of repair or maintenance of that easement. This applies across all types of easements except for easements in gross where the grantee (the council or other body getting the benefit of the easement) is generally responsible for the full cost of repairs and maintenance.
There are a couple of exceptions to the equal sharing of maintenance and repair costs that we have set out above. The first exception is where one user of the easement causes the damage to the easement area. This may occur where one party engages contractors who cart heavy machinery up and down a shared driveway over a period and damage the drive. In that instance, the owner who engaged the contractors that caused the damage shall bear the cost of repairing the same.
The other exception is where the parties using the easement agree to different proportions of liability for an easement. An example is where owners of multiple properties access a long shared driveway but use different proportions of the driveway to access their dwellings near the beginning. For example, where a front property and a back property share a driveway, it is common for these parties to agree to share the costs equally to the front property's gate and then for the owner of the back property to be solely responsible for the maintenance and repair the remainder of the driveway from the end of the driveway used by the front property. The basis for departing from these rules is that one user of the easement is using much more of the total area than the others and so the parties can agree that they will contribute in unequal shares.
In some circumstances, disproportionate shares are recorded in the easement instrument registered on the title.
Paying or completing the repairs?
If repairs are required to enable the users of an easement to continue to benefit from it and the landowner whose land is subject to the easement won’t cooperate, the Regulations provide a right of access for the beneficiary of the easement or their contractors in order to complete the repair work. Before going onto the property, however, reasonable notice must be given to the property owner that the beneficiary intends to access the property to complete the works and minimise any disturbance to the land or the owner.
If the owner who caused the damage still won’t pay for the easement area to be fixed, the Land Transfer Regulations set out the dispute resolution process to be followed in order to resolve an ongoing issue [2].
This involves engaging an arbitrator to determine the appropriate outcome; this should be only considered as a last resort.
Understand your obligations
It is important to understand your rights and obligations relating to easements whether you own the land ‘burdened’ by the easement or are simply a neighbour who benefits from it. The Regulations are a great starting point but, before you take any steps to enforce your rights or before you buy a property that grants or gains a benefit from an easement, you should talk with us to ensure you are acting within the law.
2. R14 Schedule 5, Land Transfer Regulations 2018.
