How Easements Affect WA Property and How to Remove or Negotiate One

Most people discover their first easement the same way. They find a property they love, sign a contract, and then, somewhere between the building inspection and the plans for a new patio, someone mentions a strip of the block that cannot be built on. Or they get a letter from a neighbour’s lawyer about a driveway. Or a builder points at a line on a survey and says that pipe underneath is not going to move.

Easements are common in Western Australia. They sit quietly on thousands of titles, and most of the time they cause no trouble at all. But when they do matter, they matter a lot. They can limit what you build, shape how you use your yard, affect your plans to subdivide and change how a buyer sees your property.

This guide explains what easements are, how easements affect WA property, how to find out whether one applies to you and the realistic ways to negotiate, vary or remove one. It is written for buyers, sellers, owners and developers who want to understand the issue before it becomes expensive.

What an Easement Actually Is

An easement is a right attached to one parcel of land that lets the owner of that parcel use part of someone else’s land in a set way, or restricts how that other land can be used. Landgate, the WA land titles authority, describes the two parcels as the benefited land and the burdened land. In older terminology they are called the dominant and servient land.

The key points are these.

• The burdened land carries the obligation. If your block is burdened, you must allow the easement to be used, even though you own the land.
• The benefited land gets the right. The owner of that land, and later owners, can use the easement as described.
• It runs with the land. An easement generally continues when the property is sold. It is not personal to the current owners.
• It must be defined. A registered easement is described by its purpose and location, and the detail matters.

Common Types You Are Likely to Meet

• Rights of way and carriageway easements. A neighbour’s right to cross your land to reach theirs, common on battleaxe blocks and shared driveways.
• Drainage easements. Space for stormwater or sewer pipes to cross land.
• Service and utility easements. Power lines, water and sewer mains, telecommunications cables and gas pipelines.
• Support and party wall easements. Rights relating to structural support between buildings.
• Light and air easements. Rights that protect access to natural light.
• Pipeline and bore easements. Rights to take water or run pipes.

Some easements benefit another property. Others benefit an authority, such as a utility provider, rather than a neighbouring block. Under general law in WA, an easement normally needs both benefited and burdened land, and easements that benefit an authority rather than land generally exist only where a statute allows them.

How Easements Are Created

Knowing how an easement began helps you work out how it can be changed. Common methods include:

1. A registered deed prepared for the purpose.
2. A grant or reservation in a transfer. For example, when a lot is sold, the seller may keep a right of way over it.
3. A grant or reservation in a lease, which usually lasts only for the term of the lease.
4. Subdivision or planning approvals. Plan approvals can create easements, for instance for drainage or access.
5. Notation on a deposited plan. Many easements are created as part of a subdivision.
6. Scheme plans for strata and community titles. Short form easements can be created on these plans.

Some easements are also implied by statute, such as carriageway rights for lots that abut a right of way in certain situations.

How to Find Out Whether Your Property Has One

The first step is a title search. The Certificate of Title records the owner, any mortgage and other interests, and the easements that burden or benefit the land. Deposited plans and survey diagrams show where they sit.

For buyers, the practical checklist is:

• Get a current title search before you sign. Do not rely only on what the agent says.
• Get the supporting documents. The title may refer to a deposited plan or a registered document that sets out the terms.
• Compare the plan to the site. Walk the boundaries. Look for pipes, access covers, power poles, fences, gates and driveways that might relate to an easement.
• Check for caveats. A caveat can signal a claimed interest in the land and can block dealings until it is resolved.
• Ask about informal arrangements. Things like shared driveways or long-standing access that are not on title may still matter.
• Talk to a lawyer before you commit. Some terms are technical, and what the easement says can be different from what people assume.

Doing this before you sign is far cheaper than discovering a problem after settlement.

How Easements Affect WA Property Day to Day

This is where easements stop being abstract. The effects tend to fall into a few categories, and the details depend entirely on the wording and the type.

Building and Renovation

Most people notice easements when they plan to build. You generally cannot build over certain easements, particularly those that carry sewer, drainage or other infrastructure, because the holder needs access to maintain it. Utility providers often have rules about building on or near their assets, and approval may be needed before you proceed. Pools, sheds, extensions, retaining walls and even fences can be affected.

Use of the Land

A right of way means other people have the right to use that part of your land, which can affect privacy, noise, security and how you use the space. If your own driveway is subject to an easement, you may be obliged to keep it clear and not obstruct access, even if it feels like part of your yard.

Maintenance and Costs

Who looks after the easement, and who pays? The answer depends on the terms and the law. Shared driveways in particular can be a source of friction when surfaces need repair. Without clear written terms, disagreements over cost and standards are common.

Subdivision and Development

If you are planning to subdivide, easements can shape what is possible. They may influence lot layouts, access, services and approvals. New easements are often created as part of the process, and existing ones may need to be varied or removed.

Value and Saleability

Many easements have little or no effect on value. Others can be significant, especially if they restrict building, reduce usable area or carry heavy traffic. A buyer’s reaction may depend on how obvious the impact is and how well it has been explained. Selling is easier when you know your easements, have the paperwork and can explain what they do.

Finance and Insurance

Lenders look at title. Some easements can influence valuations or lending decisions, particularly where they limit the use of the land. It is worth discussing any easement with your lender and insurer if it affects buildings or access.

Relationships

Easements often involve neighbours, and neighbours often remain neighbours for a long time. A reasonable, documented approach tends to preserve relationships. A hostile one can lead to years of friction.

Can You Negotiate an Easement?

Yes, in many cases. Removal is not always possible, but variation by agreement often is. Negotiation tends to work best when both sides understand what they are trying to achieve.

Common Things People Negotiate

• Relocating the easement. Moving a right of way or drainage line to a spot that suits both parties better.
• Narrowing it. Reducing the width or length of the easement to free up usable land.
• Changing its purpose or conditions. For example, limiting hours, vehicle types or use.
• Sharing costs. Agreeing how maintenance and repairs will be funded.
• Compensation. A payment from the person who benefits, or to the person who agrees to release or vary the easement.
• Partial release. Removing the easement over part of the land while keeping it elsewhere.

How Negotiation Typically Works

1. Understand the easement first. Get the title, plan and original document. Know exactly what it says.
2. Clarify your objective. Is it more building space, privacy, a subdivision or a sale?
3. Identify who needs to agree. This includes the owner of the benefited land, and possibly mortgagees and others with registered interests.
4. Open a respectful conversation. Offering a practical benefit in return often helps.
5. Document the deal properly. A handshake agreement is not enough. Changes generally must be recorded in registered documents.
6. Lodge and register. The change takes effect on title only when it is registered, and stamp duty may be assessed by Revenue WA on certain documents.

Utility and authority easements can be harder. These bodies hold their easements for public purposes, and their requirements are usually set by policy rather than negotiation. Still, many will consider requests to build near assets, relocate infrastructure at the owner’s cost or allow certain structures subject to conditions.

How Easements Can Be Removed in WA

Removal depends on how the easement was created and what the law allows. The Landgate guide on removal of easements sets out the main pathways, and the summary below is general information only.

Surrender by Agreement

If the people with the benefit of the easement agree, they can formally surrender it. In practice, everyone with an interest in the affected land must consent, and that can include mortgagees. The surrender is documented in a registered instrument, signed by the relevant parties, and lodged with Landgate. Certain easements, such as some created on subdivision, have different rules.

This is the simplest route when the neighbour or authority is cooperative. It can also involve a payment, so negotiation and removal often go together.

Abandonment

If an easement has not been used for at least 20 years, the registered owner of the burdened land may be able to apply to have it removed as abandoned. The application requires evidence, such as a statutory declaration confirming non use, a sketch, photographs and declarations from independent people. Notice is given to those affected, and if there is an objection, it is assessed on its merits. Abandonment must be total, so partial non use is not enough.

Merger

If the benefited and burdened land come under the same ownership, the easement can be extinguished at common law because a person cannot have an easement over their own land. The change must be recorded with Landgate, and the process differs depending on how the common ownership arose. Statutory easements are removed under their own legislation.

Court Orders

Where agreement is not possible, a court can be asked to modify or remove an easement, wholly or partly. This is an option when the easement is obsolete, unreasonable or no longer serves its purpose, but it requires legal proceedings and the outcome is not guaranteed. The order is lodged with the Registrar so the register can be amended.

Statutory Processes for Particular Easements

Some easements are removed through special processes. For example, those created through planning approvals are dealt with by an application to the Registrar with the written consent of those with registered interests. Easements created under certain subdivision provisions involve notice requirements, and if anyone objects, a court order may be needed. Easements in strata and community title schemes are generally dealt with through scheme plan amendments. Easements over Crown land involve the Minister. Compulsory acquisition for public works can also remove easements and convert rights into compensation.

Why the Route Matters

Choosing the wrong pathway wastes time and money. The same easement might be impossible to abandon but straightforward to vary by agreement, or the reverse. This is one of the main reasons people get legal advice early.

How Long and How Much?

There is no standard answer. Timeframes and costs depend on the pathway, the number of parties involved, the complexity of the title and whether anyone objects. As a general guide:

• Agreement based changes can be quick if everyone cooperates, but registration and any duty assessment add steps.
• Abandonment involves evidence gathering and notice periods.
• Court applications take longest and cost the most, with a risk of an unfavourable result.

Costs can include legal fees, survey fees, registration fees, duty where applicable and any compensation. Ask for a written estimate and check what it covers. Weigh it against the benefit, such as the extra usable land, the building you want to do or the sale price you hope to achieve.

Practical Steps if You Think an Easement Is a Problem

1. Get the facts. Obtain the current title, the easement document and the plan.
2. Understand your goal. Decide what outcome would solve your problem.
3. Check whether you actually need to remove it. Sometimes a variation, a design change or a consent from the holder will do the job.
4. Identify the parties. Who owns the benefited land? Who holds mortgages? Is a utility involved?
5. Get advice early. A lawyer can tell you which pathway fits and what evidence is needed.
6. Approach the other party. A calm, well prepared conversation often achieves more than a formal letter.
7. Document everything. Keep records of conversations, agreements and correspondence.
8. Do not obstruct or build without checking. Blocking an easement or building over one can lead to disputes and orders to remove structures.

Mistakes Owners and Buyers Make

• Skipping the title search. Easements are visible if you look.
• Assuming an easement is harmless. The wording and location matter.
• Building first and asking later. Structures over easements can be expensive to undo.
• Relying on verbal agreements. Only registered changes bind future owners.
• Ignoring utility rules. Approvals may be needed even for minor works.
• Treating abandonment as automatic. It requires evidence and a formal process.
• Leaving it until selling. A problem found during a sale puts you under time pressure.

Questions to Ask a Property Lawyer

1. What does this easement allow, and who has the benefit of it?
2. How was it created, and what does that mean for removing it?
3. Can I build, fence or landscape on the easement?
4. Is variation or relocation realistic?
5. Who needs to consent, and what will they likely want?
6. Is abandonment possible on these facts?
7. What are the costs, steps and timeframes?
8. What risks do I face if I do nothing?
9. If I am buying, should I negotiate the price, add a condition or walk away?
10. What documents will need to be registered?

Final Word

Easements are not a reason to panic, but they are a reason to pay attention. Check the title early, read the terms rather than the summary, and think about how the easement fits your plans. If it is in the way, there may be more options than you expect, from a simple agreement with a neighbour to a formal removal process. The important thing is to choose the right path and to get the paperwork right.

If you live in or near Armadale and are looking for a lawyer to help with an easement on your property, are you ready to speak with DFG Legal Armadale about your situation? You can also read more on property disputes and land issues, browse the law articles and resources, or contact a property lawyer in Perth to discuss next steps.

Frequently Asked Questions

1. Can I build over an easement on my property?

Often not, especially where the easement carries sewer, drainage, power or other infrastructure, because the holder needs access to maintain it. Some structures may be allowed with the holder’s written approval, and some are not allowed at all. Check the easement terms and the relevant authority’s requirements before you design or build.

2. Can I remove an easement without my neighbour’s agreement?

Sometimes. If the easement has not been used for at least 20 years, it may be possible to apply for removal as abandoned. A court can also modify or remove an easement in suitable cases. Both routes require evidence and a formal process, and the outcome is not guaranteed, so get advice first.

3. Will an easement reduce my property’s value?

It depends on the type and location. Many easements have little effect, particularly where they run along a boundary or carry underground services. Others limit building, reduce usable space or affect privacy, and these may affect value. The best approach is to understand the easement and be ready to explain it to buyers.

4. How do I find out whether my property has an easement?

Order a current title search and obtain the related plan or registered document. The Certificate of Title records easements, and the plan shows where they are. A site inspection can help you spot related features such as pipes, access covers and shared driveways.

5. What is the difference between an easement and a covenant?

An easement gives someone a right to use or restrict part of your land in a set way. A covenant is a promise that limits what you can do with your land, such as rules about building materials or house size. Both can appear on title and bind future owners, but they work differently and can be removed through different processes.

Sources

• EAS-01 Easements (Landgate)
• EAS-03 Removal of easements (Landgate)
• Understanding covenants and easements (REIWA)

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This article is general information only and does not constitute legal advice. Easement law is technical and the correct approach depends on how the easement was created and the wording of the documents. Always seek advice from a qualified lawyer about your specific property before acting.