If you own real property, or are looking to buy, it’s important to be aware that owning a property doesn’t mean you can stop others from using it, even if the use is not specifically disclosed on a title search or in the contract of sale.

An easement is a right to use someone else’s property, or a portion of it, for a particular purpose. For example, an easement for drainage might cover a portion of your property where the board sewer runs underground. This type of easement is registered on the title and disclosed in a contract of sale for prospective purchasers to inspect … but not all easements are so disclosed.

A prescriptive easement is a right to use someone else’s property when such use starts out unauthorised, but continues due to inaction by the owner, and over time converts into a right of use, called a prescriptive easement. On 28 October 2020 the New South Wales Court of Appeal handed down a decision which confirmed this principle.

The facts of the case centered around two adjoining parcels of land in Sydney’s CBD, known as the “Dock” and “Passage”. These two parcels were purchased by their current owners in 2008. It was established that by the time the current owners purchased the Dock and Passage in 2008, an easement already existed over the lots. This easement resulted from the long and continued use of the lots by neighbours, when the owners acting reasonably and diligently ought to have known of the use and prevented such use from continuing.

This case is a timely reminder to;

  1. understand the extent of the property you own, and if any portion of it is being used without your authority, take legal advice about your rights;
  • if you are unsure of the extent of the property you own, have it surveyed to identify the boundaries and take legal advice about the extent to which it may be burdened by an easement or similar instrument; and,
  • if you are a prospective purchaser of land, observe how it is being used and if you have any concerns about its use or boundaries (or similar) take legal advice.

If you have any questions, please do not hesitate to contact us here at Turnbull Hill Lawyers.

Here is a link to the full decision.

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