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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.

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.

What happens if one portion is not Real Property Act (ie is General Law) and the other is Real Property Act (Torrens Title)?       Lands Titles Office Practice Book para 104(e)

If the title granting the Easement (the Servient Tenement) is not Real Property Act (ie General Law), then the Easement DOES NOT become attached to the Real Property Act, the Dominant Tenement. It is created and registered in the Deeds Office only. The Servient Tenement should then bring the Easement under the Real Property Act using a sec 11 application. 

Therefore any Contract that is creating an Easement must give consideration to the parent titles involved and cover the above as a clause in the contract ie the Servient Tenement ALSO is contracted to then apply under sec 11 to convert the General Law Easement to Real Property Act

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.