You've found a property you like, and somewhere in the contract there's a reference to an easement running across the back of the block. It sounds technical, and it's easy to skip over. But an easement can decide whether you can build that extension, put in a pool, or even plant a tree where you wanted one.
In Victoria, an easement stays with the land. It doesn't disappear when the property is sold, so whatever rights it gives someone else become your problem to live with once you settle. The good news is that most easements are recorded on the title, which means you can find them and understand them before you sign.
What an easement actually is
An easement is a right for someone else to use part of your land for a specific purpose, even though you own the land. The land that carries the easement is the burdened land. The land or authority that benefits from it holds the right.
A simple example: your neighbour's only access to the road runs along a strip of your driveway. A right of way easement gives them the legal right to keep using that strip, and you can't block it, even though the ground is yours.
Easements don't stop you owning the land or using most of it. They limit what you can do over the part the easement covers, and sometimes a margin around it.
The common types you'll see in Victoria
Most residential easements fall into a few familiar categories.
Drainage and sewerage easements are the most common. They let water and sewerage authorities, or the council, run pipes under your land and access them for maintenance. These often sit along the rear or side boundary.
Carriageway easements (also called rights of way) give another person the right to pass over part of your land, usually to reach their own property or the street. They're common with battle-axe blocks and shared driveways.
Party wall and support easements deal with shared walls and structural support between neighbouring properties, which matters for townhouses and terraces.
Utility and service easements let providers run electricity, gas, water, or telecommunications lines and equipment across the land.
Easements created through a plan of subdivision (for things like carriageway, drainage, party wall, and the supply of services) attach to the relevant lots automatically. The benefit and the burden pass with the land from one owner to the next, which is why they keep applying long after the subdivision was first registered.
How easements show up on the title and in the Section 32
Registered easements appear on the plan attached to the title. The plan shows where the easement runs and is usually marked with a letter (E-1, E-2) and a legend describing its purpose and width.
For a fuller walk-through of the vendor statement, see our guide to what's in a Section 32 and the plain-English conveyancing glossary.
What an easement means for what you can build
This is where easements catch buyers out. If your plans involve building over or near an easement, you usually can't just go ahead.
You generally need the report and consent of the relevant council or service authority before a building permit can be issued for a structure built over an easement. The authority will look at whether your proposed work could damage or block access to the infrastructure the easement protects, such as a council drain. Carports, garages, extensions, and even some decks can all be affected.
Consent isn't guaranteed. If there's a live drainage pipe under the easement and your build sits on top of it, the answer may simply be no, or yes with conditions. In some cases the council records its consent and the conditions through a section 173 agreement registered on the title.
If you're buying with renovation or development plans in mind, the location of an easement can change what's realistically possible. That's a check worth doing before you bid, not after. Our guide to pre-auction due diligence covers the searches that surface this kind of issue early.
The easements that don't show up on title
Not every easement is registered, and an unregistered easement can still bind you as the new owner even though the title looks clean.
There are two situations to be aware of:
Implied easements can arise from the way a property was subdivided or has historically been used - for example, a drainage line that's always served two blocks but was never formally recorded.
Prescriptive easements can be acquired at general law through long use, generally 20 or more years of continuous, open use without permission or force. A neighbour who has openly used a path across the land for decades may have a right that no document mentions.
These are less common, but they're a reason that signs of use on the ground (a worn driveway, a pipe, a shared path) are worth asking about, because the title won't always tell the whole story.
Can an easement be removed or changed?
Sometimes, but it isn't quick or guaranteed.
An easement can be removed or varied by agreement if everyone with an interest in it, including the owner of the land that benefits, consents. Where agreement isn't possible, section 23 of the Subdivision Act 1988 (Vic) allows an easement to be removed or varied, usually as part of a plan of subdivision or consolidation and typically requiring a planning permit. The council weighs up the interests of anyone affected before deciding.
In practice, removing a live drainage or services easement is difficult, because the authority that relies on it has good reason to keep it. Removing an old easement that no longer serves any purpose is more achievable, but still involves a formal process and cost.
How Nextstep Legal helps
When we review a contract under our free contract review service, checking easements is part of the standard read. We look at the plan to see where each easement runs and what it's for, and we flag anything that could affect your plans for the property.
If an easement sits across the part of the block you were counting on, you'll want to know before you sign, not after settlement. We'll explain in plain terms what the easement allows, who benefits from it, and whether it's likely to get in the way of what you have in mind.
If you've been handed a contract and you're not sure what the easements on the title actually mean for you, send it through. We'll go through it the same day. Get a free contract review.
This article provides general information about Victorian property law. It's not a substitute for legal advice on your specific situation. If you'd like to discuss your circumstances, get in touch.
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