An easement gives a party (the grantee) the right to use land for a particular purpose, such as right of way access. An easement is usually created by the owner of the land (the grantor) over which the easement is to extend (the grantor) in favour of land owned by the grantee.
Easements are commonly granted for purposes such as vehicle access, pathways, walkways, supply of utilities such as water and gas, and parking.
A grant of easement normally requires dominant and servient land. Dominant land is the land that holds the benefit of the easement. Servient land is the land over which the easement is to extend.
An easement will either be contiguous or non-contiguous. A contiguous easement will be where the dominant and servient land are adjacent to each other. An example of a contiguous easement is an easement for an access driveway which extends over a block of land to a neighbour’s block next door. For a non-contiguous easement the dominant and servient land are separated by other land.
In some cases an easement in gross may be created. An easement in gross is where there is no dominant land. In other words, there is not a particular piece of land which holds the benefit of the easement.
Under Section 41A of the Law of Property Act 1936 (SA) an entity may be declared as an entity to which an easement in gross can be created without there being appurtenant land.
Easements in gross will usually be granted to statutory authorities such as local councils, SA Water and Distribution Lessor Corporation (for electricity transmission). They are typically granted in favour of companies or private trusts established for the supply of utilities, such as water or power, to a local community or local enterprises. The benefit of an easement in gross is that these easements can be granted over parts of land in favour of a company or a trust rather than in favour of any particular owner of dominant land.
An application for an entity to be declared under Section 41A of the Law of Property Act 1936 (SA) as an entity to which easements in gross can be granted is made to the Attorney General of South Australia. The application is made in letter form and supported by relevant documents. The Attorney General’s Office will then consider the application and, if the Attorney General is prepared to support the application, he will recommend to Cabinet that the entity be declared a body for the purposes of Section 41A. Provided Cabinet accepts the recommendation and approves the entity, the next step will be for a proclamation to be made by the Governor of South Australia on the advice of the Executive Council. The proclamation is then gazetted, after which time the entity is able to accept the grant of easements in gross for registration at the Lands Titles Office.
Further advice regarding the grant of easements in gross can be provided by DW Fox Tucker Lawyers.
This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.