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Glossary

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Easement of Support

Easement of Support is best defined by: The full right and liberty at all times hereafter to have the existing building erected upon the land comprised in Folio of the Register Volume XXXXX Folio XX as at the date of this transfer and any future building requiring for it's stability the same or any legs support than the existing building from the soil and existing building erected on the land comprised in Folio of the Register Volume ZZZZZ Folio ZZ being both lateral and subjacent support upheld and maintained by the soil and existing building erected on the land comprised in Folio of the Register Volume ZZZZZ Folio ZZ

PROVIDED ALWAYS that this easement of support shall not be construed to prevent the owner for the time being of the land comprised in the Folio of the Register Volume ZZZZZ Folio ZZ or it's successors in title from making excavations or carrying out works of any nature or kind provided that in making any excavation or carrying out works for any purpose sufficient support for the existing building or any future building shall be provided by with natural or artificial means and that not excavations or works shall be made of a permanent nature without leaving permanent means of support.

SIMPLY:

An easement of support is a way of ensuring that whatever is required to maintain the support of a building is maintained (not removed or 'weakened')by the other party.

HOW WE ASSIST:

We can redefine the location of such easements and explain the extent of area to be maintained.

Contact us for advice in relation to these matters. 

Easement to Batter

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Easement to Batter means the right for a highway authority to maintain the slope and stability of higher land adjoining a highway to ensure the adjoining land does not spill onto the highway.

Within a Batter Easement (see lot 19 adjoining) or Easement to Embank (see lot 3 adjoining) some Councils will allow building or the construction of walls etc but only after they are satisfied that the Road is still ‘supported’ . This usually requires the certification of an engineer followed by a Petition to Amend the sealed plan.

The Petition to Amend can be simple as the only interested parties are Council and the land owner.

Contact us for advice in relation to these matters. 

Easement

Easement: A right which a person has to use land belonging to another for a particular use without taking ownership of the land. This right must be attached to another piece of land, called the dominant tenement. The most usual easements are rights of way and easements for the flow of water or sewerage over and through another's land.

Contact us for advice in relation to these matters. 

Easement of Eaves

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Easement of Eaves means the right of the owners and occupiers for the time being of the dominant tenement to have eaves projecting or overhanging that portion of (for example) lot 'x' marked 'w''x''y''z' on the plan, and includes the right to enter in and upon the land for the purposes of repairing and maintaining such eaves at all times with or without workmen and making good any damage thereto occasioned by such entry in use.

The example on the right relates to the eaves of a very old building overhanging the boundary and a right granted by the adjoining owner to allow same (as is necessary for a stratum development, the end  result of this example). The photo reflects the physical eaves in this example; quite clearly over the boundary, being the face of the brick wall.

SIMPLY:

an easement that allows the eaves on one building to overhang the boundary of the land into the ownership of another.

HOW WE ASSIST:

We can advise of the extent of such an easement and redefine it's location if the eaves themselves are missing.

Contact us for advice in relation to these matters. 

Effluent Disposal

Effluent Disposal is a necessary part of developemnt approval and is a significant issue in unsewered areas.

Effluent must be contained within the boundaries of the allotment in question or an Absorption Easement

See Septic Tank in this Glossary.

Contact us for advice in relation to these matters. 

Electricity Infrastructure Easement

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Electricity Infrastructure Easement: is shown in the example on the right along the upper northern boundary of the land in the plan. It is best defined by:

FIRSTLY all the full and free right and liberty for Aurora Energy P\L and it's successors and it's and their servants agents and contractors (hereinafter call "the Corporation" at all times hereafter:

a) TO maintain and lay erect and install anything used for, or in connection with the generation, transmission or distribution of electricity including powerlines (overhead or underground), substations for converting electricity, substations for transforming or controlling electricity and equipment for metering, monitoring or controlling electricity (hereinafter called "electricity infrastructure) of such materials and type as the Corporation may determine above, on or under the land respectively marked "Easement Infrastructure Easement" on Plan (hereinafter called the servient land.

b) TO enter into and upon the servient land for the purpose of examining, operating, maintaining, repairing, modifying, adding to or replacing electricity infrastructure without doing unnecessary damage to the said servient land and making good all damage occasioned thereby.

c) TO erect fencing, signs, barriers or other protective structures upon the servient land if in the opinion of the Corporation these are necessary for reasons of safety.

d) TO cause or permit electrical energy to flow or be transmitted or distributed through the said electricity infrastructure.

e) TO enter into and upon the servient land for all or any of the above purposes with or without all necessary plant equipment and machinery and the means of transporting the same and if necessary to cross the remained of the said land of the registered proprietor/s for the purpose of access and regress to and from the servient land.

NOTHING herein contained shall precent the registered proprietor/s for themselves and their successors in title from using the servient land PROVIDED THAT such use does not derogate from this grant or, in the opinion of the Corporation's electricity infrastructure locate, on or above or under the servient land.

SECONDLY the benefit or a covenant for Aurora Energy P\L and its successors with the registered proprietor/s for themselves and their successors in title of the servient land not to erect any buildings or place any structures or objects within the said easements without the prior written consent of the Corporation to the intent that the burden of the covenant may run with and bind the servient land and every part thereof and that the benefit thereof may be annexed to the easements hereinbefore described

SIMPLY:

this means that the authority that enjoys the easement has the right to erect and maintain structures on your land.It usually also means that you are not allowed to erect any structure within the boundaries of the easement

HOW WE ASSIST:

If your title indicates a Wayleave or Infrastructure Easement we can mark it's location on the ground and also show it's relationship to other structures and title boundaries. In this way one can design and build improvements without intruding into the easement and contravening the rights of the easement holder

Contact us for advice in relation to these matters. 

Embankment easement

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Embankment easement: means the right for a highway authority to maintain the slope and stability of adjoining land below a highway to ensure the highway does not collapse onto that land. See the example on the right showing such an easement passing through lot 3.

Within a Batter Easement or Easement to Embank some Councils will allow building or the construction of walls etc but only after they are satisfied that the Road is still ‘supported’ . This usually requires the certification of an engineer followed by a Petition to Amend the sealed plan.

The Petition to Amend can be simple as the only interested parties are Council and the land owner. 

Encroachment

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Encroachment: An unlawful gaining of part of the land of a neighbour. An encroachment is usually in the form of a fence, or portion of a building, erected by someone on his or her neighbour's land. 

The survey on the right is an Identification Survey undertaken prior to purchase and shows the existing house encroaching onto the adjoining Road widening.

Engineering Surveys

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Engineering Surveys: are carried out to provide both vertical and horizontal details over your land to facilitate the further engineering design of roads or servicing. Such surveys usually create a DTM (Digital Terrain Model) for further processing and design.

HOW WE ASSIST:

We can co-ordinate with other allied professionals so that the survey is tailored to the precise requirements of your project.

Contact us for advice in relation to these matters. 

Equity

Equity: The value or purchase price of a property less the amount of any loans charged or secured against the property. Equity is the proportion of the property value that the owner can call his or her own.  

Estate

Estate:An estate is an interest in land. 

Extension Agreement

Extension Agreement: An agreement to extend the terms of a document or contract. An extension agreement in a mortgage, for example, grants additional time to perform one or more of its provisions. 

Early Issue

Early Issue:  A term used to describe the process adopted by the Lands Titles Office to streamline the processing of dealings within their office.

 

It involves lodging copies of soon to be lodged survey documents (Final Survey Plan, Field Notes,  Schedule of EasementsLands Titles Office Fees) at the time of lodging the Final Survey Plan with Council for final approval and sealing. The Titles Office commences processing pending receipt of the actual documents from Council. Is now used for ALL lodgements to the extent that it is now the 'norm'. If documents are lodged NOT under this system then they go to the bottom of the list!

Easement in Gross

An easement in gross may be created or acquired by the Crown, or any public or local authority constituted by or under any legislative Act.  It is usually required for service provision and may be created in favour of the Crown or a public authority constituted under a legislative Act. The easement does not have a dominant tenement as the authority does not own any land nearby.

Easement, Transfer of

Transfer of Easement:

There are two ways to create Easements; one by Council Permit under the cover of a Sealed Plan. The other by Transfer of Easement, without the need for Local Planning Authority approval. The Easement by Transfer needs a sketch plan only if being created contiguous to a boundary or if there are less than three 'bends' in the easement. Both methods of creation are equally 'legal' and form part of the second Schedule on the title to the land.

If the easement exceeds three bends then a full Plan and Survey Notes and associated costs are generated.

The endorsement of the effected owners is also required + their mortgagees. Stamp Duty may be applicable + Lands Titles Office costs.

Note that one cannot create an Easement in favour of oneself. That is to say if an owner owns two parcels and wishes to create an easement over one in favour of the other then this can only be achieved after a change of ownership.

This scenario often arises when the owner wishes to sell one parcel; the easement can still be achieved by ensuring any Contract of Sale reflects the creation of the Easement AFTER the transfer of ownership has been achieved.

If it is desired to create an Easement in favour of, say TasWater, then this can occur even though the two parcels are in the same ownership; that is to say the easement is being created in favour of a different party.

Easement by Possession, Claiming of

Easement by Possession

CLAIMING AN EASEMENT BY POSSESSION

Background

A person who has enjoyed the use of another persons land and wishes to acquire an easement to formalize those rights may apply to the Recorder of Titles under Part IXB of the Land Titles Act 1980.

The rights being claimed must be of a type that have been recognised by the courts as an easement – right of way, overhanging eaves, party wall, drainage easement, etc.

Periods of use

A person must prove 15 years use against a title owner who is capable of defending his or her land.

A person must prove 30 years use if the title owner is the Crown, is deceased or is under guardianship.

An easement must be attached to land of the user

An easement cannot be acquired where there is no land capable of benefitting from the easement, which means an applicant needs to own land touching or concerning the easement.

Requirements for an application

An application must show that-

·        

The easement has been enjoyed as of right, meaning open, peaceful and without the land owner’s permission

·        

No written or oral agreements have been made with the land owner to use the land

·        

There has been no common ownership between the land of the applicant and the land the easement is being claimed over

·        

The land owner knew, or ought to have known, of the use of the easement

·        

The use of the land has been of a continuous nature

·        

The applicant owns the land to which the easement will be attached to

Supporting evidence

At least one other independent person must produce evidence, usually in the form of a statutory declaration, to confirm the land has been used by an applicant over the period being claimed.

Plan of survey

An application for an easement based on long possession is to be supported by a plan of survey prepared by a registered land surveyor, unless the Recorder directs otherwise.

Applicant to notify the land owner

Before lodging an application with the Recorder, a person must give written notice of their intended claim to the land owner.

If the land owner does not object the Recorder must consider the application.

If the land owner lodges an objection then the Recorder may not consider the application unless she is satisfied that the applicant would suffer “serious hardship” if the application is not granted.

In the case of a right of way; the Recorder apparently considers “serious hardship” as meaning that no other access to the land is physically possible. The Recorder does not consider the prohibitive cost of building an alternative access as “serious hardship”. This is quite often where the application fails. (not necessarily in the case of claiming title by possession)

Power of land owner to lodge a caveat

An owner whose land is being used by another person may lodge a caveat with the Recorder giving notice that the person using his or her land is doing so with the permission of the land owner. This alerts all to the fact that the ‘use’ is with his permission and therefore no claims can be made.

A caveat stops time from both accruing and running in favour of a person using the land that may amount to an easement.

The caveat is recorded on the land owner’s title.

The Recorder must give notice of the caveat to the person using the land and exercising rights that may amount to an easement.

Caveat forbidding granting of an application

 

Any person claiming an estate or interest in the land being claimed by an easement user may lodge a caveat with the Recorder forbidding the granting of the application, should such an application affect their interest in the land.