I am subdividing my land and intend to sell the new parcel but I still need access to one part of the land to use as a driveway. I think I need to have an easement over that part of the land. How can I ensure that an easement will allow me to do this?
Lawyer Answers (1): Answers from lawyers are general preliminary responses. They are not formal legal advice and cannot taken account of all your circumstances. They do not create a lawyer–client relationship.
Answer by Neha Sharma, Hillsdale 2036 NSW
- If the rights you seek to obtain are expressed in terms too wide or vague in character they may not be enforceable under the easement. For example if you said you wanted 'the right to wander at will over another person’s property' this would be too wide or vague to be a valid easement.
- If the rights you want would amount to rights of joint occupation or would substantially deprive one owner of proprietorship the easement will not be enforceable. An easement cannot substantially interfere with an owner’s right to exclusive use and enjoyment of their property.
- It must also be considered whether the rights contained in the easement constitute mere rights of recreation rather than any quality, utility or benefit. For example you would have difficulty enforcing an easement that allowed your kids to ride their bikes on a track that crossed into your new neighbour’s land.
- An easement that will allow you to use part of the land for a driveway will usually not be a problem.
- An alternative may be to change the shape of the subdivision to create a battleaxe block so the driveway remained in your possession.
- If you decide to rely on an easement you should seek the services of a lawyer to ensure that the easement is drafted correctly and that the new purchaser is aware of its existence. As you will be subdividing your land you will probably already need to work with a lawyer to draw up the new titles. An experienced property lawyer can assist you with this and answer any questions you may have regarding easements.