Making easements easier

03 May 2011

Home and property owners will find it easier to know their rights and obligations regarding easements and covenants under new recommendations from the Victorian Law Reform Commission.

In a report tabled in Parliament today by the Attorney-General Robert Clark, the Commission recommends a radical rethink of the relationship between easements and restrictive covenants created by private agreement and rights and restrictions created by planning law.

Easements and covenants are property rights that a person has in relation to someone else’s land. Easements allow limited uses such as right of way or access to water and power, and affect most land. Covenants restrict the use or development of land.

The Commissioner leading the review, Associate Professor Pamela O’Connor, said that the recommendations would simplify and clarify the law, reduce costs, improve access to justice as well as making it easier for landowners to know their rights and obligations.

“The law of easements and covenants developed before the growth of planning controls and new technologies such as solar energy, and were often complex.

“They now exist alongside a variety of powers and restrictions created under the umbrella of planning legislation and are enforced by various public entities. The interaction of these separate bodies of law is not always clear,” Professor O’Connor said.

The report includes 48 recommendations for reforming this complex area of the law.

The recommendations aim to disentangle property law and planning law while modernising the relationship between them. Easements and restrictive covenants required for private purposes would be regulated under property law. Easements and restrictions required for public planning purposes would be regulated under planning law.

Recommendations also include limiting the types of easements that can exist without being recorded on title and standardised wording for common types of easements.

This is the second component of the review of property laws by the Commission. The first component, a review of the Property Law Act 1958, recommended a complete overhaul of the Act.

Commission Chairperson, Professor Neil Rees thanked Professor O’Connor for leading the reference and bringing her extensive knowledge of property law to the project.

Media enquiries: 
Nicola Edwards, Communications Manager, Tel: (03) 8608 7824 or 0428 025 009

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Date published: 
03 May 2011

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