We are looking to purchase a property which also hasan easement benefit, does this mean if we subdivide (which it is already zoned for, we could not either build a driveway to access the rear of the block or place either house over the easement area?
Can you clarify, is your bock benefited by an easement (e.g. you have access rights to part of your neighbour's property), or are you burdened by an easement (e.g. your neighbour has a right to access through part of your property)?
Hi there,It is benefited.ThanksGwen
It is only the burdened unit that should be adversely restricted for development purposes by the existence of an easement.
Naturally, if the easement in question is fundamental to accessing your property, then you would presumably need to ensure any subdivision allowed all subdivided lots to have access to the access way.
Also, you cannot build on the area of the easement, which is your neighbours property not yours, despite your having access rights to the area affected by the easement. The easement may, depending on its terms, entitle you (as owner of the benefited property) or oblige your neighbour (the owner of the burdened property), to construct and maintain a driveway on the easement for the use of both parties. Indeed the most common function of an easement is to allow neighbours access through the burdened property.
In any event, if you are looking to purchase a property with a view to redevelopment you should consult with a local planning lawyer before committing to a purchase as there is a great deal of local law which applies to property development and subdivisions which mean that the general rules outlined above do not always apply in all situations.
I trust the above assists your understanding.
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So are you saying that either way I could not build over the easement?ThanksGwen
Yes, your entitlement to use the easement is set out in the easement instrument but is typically only to be used as an access way, and neither party can generally build over it. The owner might be able to build above it, provided it did not interfere with the easements function.
The easement might allow you or the neighbour to build a roadway or to lay pipes in the ground (laying service lines/pipes is the other main function of an easement) but generally parties cannot build over an easement.
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