5 Tips for dealing with easement requests by a developer (section 88K of the Conveyancing Act)

Has a neighbour approached you with a request that you agree to grant an easement, perhaps to run drainage through or drive over, over your land? If so, it is essential that know what your rights are, now and into the future.

Your $$$$$$ compensation

In most instances, you have right to be compensated for an easement imposed over your land. The compensation amount is usually either agreed with party requesting the easement or ordered by the Court. The amount will vary depending on several things which may include the needs of the party requesting the easement, the amount of an expert’s valuation of the impact of the easement, the nature of the easement granted and your or your solicitor’s negotiation skills.

Your right to compensation is reflected by section 88K (4) of the Conveyancing Act 1919 which provides that if the Court makes an order imposing an easement over land that it also provide in the order an amount for compensation to the land owner unless there may be special circumstances.

Your legal costs paid

It is very important to seek legal advice regarding a potential easement over your land and ensure your rights are properly protected during the process to agree to grant the easement, the construction of the easement and into the future.

It is common practice for developers (or people requesting the easement) to agree to pay your legal fees.  Here is a template letter you can use to request this.

If you agree to grant the easement without the need for Court proceedings, we recommend you enter into a Deed with the neighbour that includes a provision that all your legal costs of and associated with the granting of the easement are paid by the neighbour. This ensures your neighbour pays your legal costs and you are not out of pocket.

If the dispute ends up in Court, perhaps because the amount of compensation cannot be agreed or the neighbour has not been reasonable, section 88K (5) of the Conveyancing Act 1919 provides that the costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary.

Ongoing maintenance of the easement

Many easements require ongoing maintenance either on a regular basis, or perhaps in 10 years when the piping under the ground may need fixing. Provision for ongoing maintenance is best included in the Transfer Granting Easement, which is the document that provides permission from a land owner for an easement to be created over their land.

We recommend you enter into a Deed with the neighbour which includes a provision that ensures either the current owner or future owners of the land benefited by the easement keep the easement in good repair and working order. This type of provision may save you many thousands of dollars down the track.

Protection from any liability

There will often be construction works associated with the easement and it is important you are protected should there be an accident such as a person being hit by a falling fence or a child falling into a hole on your land.

We recommend you enter into a Deed with the neighbour which includes a provision that ensures you are indemnified against any liability, loss, claim or proceeding arising out of the construction works associated with the easement.

What to do next?

No matter at what stage of the granting an easement process you may be, you will benefit from obtaining legal advice to assist you in achieving the maximum amount of compensation payable and ensuring your rights are properly protected now and into the future.

Feel free to ask us any question you may have and we look forward to helping you – 02 7200 8200 or adam@adamahmed.com.au

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