March 20 2015
Care is needed
An easement is defined as ‘a right of one person is respect of another person’s land.’ For rural properties these rights can often be crucial issues for the use of land – in particular, rights to take and convey water from one property to another, rights of drainage and to convey electricity (particularly in respect of pumps) as well as rights-of-way for access.
When you’re purchasing a property, granting easements to your neighbour, or when taking an easement over your neighbour’s property, it’s important to be clear about the terms of that easement.
The Land Transfer Regulations 2002 imply certain rights and powers in the following easements – the rights to:
- Convey water
- Drain water
- Drain sewerage
- Convey electricity
- Convey telecommunications and computer media, and to
- Convey gas.
Also, vehicular rights-of-way have additional terms implied in them by Schedule 5 of the Property Law Act 2007.
The rights and powers implied by both the Land Transfer Regulations and the Property Law Act can be replaced and modified by the easement document itself.
Modern easements tend to rely heavily on the implied terms. For this reason it‘s important to understand what those implied terms are because not all easements are the same. There are particular issues regarding water and rights-of-way easements that you need to think about.
The main issue regarding the right to convey water is that the implied rights simply give the right to convey water from a source of supply over one person’s land to another person’s land. It’s not a guarantee that there’s water there and there’s no limit on the quantity of water that can be taken or the use to which the water can be put. So you need to think hard as to whether or not specific terms to regulate the water supply should be included in the easement document. This is usually done by either:
- Putting a limit on the amount of water that can be taken, or
- By limiting the use to which the water can be put.
A major issue for vehicular rights-of-way is the standard to which the right-of-way needs to be constructed and maintained. Schedule 5 of the Property Law Act implies the right to
‘establish a right of way on the land over which the right of way is granted …’ and also gives ‘ the right to reasonable contribution towards the costs of establishment, maintenance, upkeep and repair of driveway to an appropriate standard …’ [our emphasis].
In a mixed rural/lifestyle situation there’s often debate as to the ‘appropriate standard’ for a right-of-way. For the lifestyler living in the country the ‘standard’ could be poles apart from what the local farmer needs. Therefore, it’s important when granting these rights-of-way and there is going to be a mix of users, to fix the standard in the easement documentation so that arguments don’t arise later. The costs of establishing long sealed driveways in rural areas can be substantial!
And more …
You also need to be wary of the general rights implied in all the easements listed above to ‘use any easement facility already situated on the stipulated (easement) area or cause for the purpose of the easement granted.’ What this means, for example, is that if you grant a right to a neighbour to take water from a well on your land, they are entitled to use any ‘pipes, pumps, pump sheds, storage tanks, water purifying equipment, other equipment suitable …’ that are already situated on your land. So once again, without modifying the implied terms you’re also granting the right to use any easement infrastructure that already exists on the easement area.
Our advice is to look carefully at the terms of easements when granting or taking an easement, or when looking at a property that’s subject to existing easements. Easement terms are not all the same and you need to consider carefully what terms might be appropriate in each instance. For more assistance with rural legal advice or specific questions around easements contact the friendly Gifford Devine team today.