One of the basic principles of Property Law in Queensland and around Australia is this: if you own it, you get to enjoy it without interference from others.
However, in practice there are many reasons that this basic rule might need to be relaxed.
A common example is the “battle axe” block – a piece of land completely surrounded by other pieces of land (so many neighbours – how fun!).
Without something changing, a battle axe block would be inaccessible and therefore useless to everyone except for the most self-sufficient hermit on the land.
So, the law allows one piece of land to be burdened with a “right of access”, where another property must give up some space for a driveway or path to be kept available so that the owner of the battle axe block can access their land.
Technically the driveway still belongs to the original landowner. However, there are some restrictions on what they can or cannot do with that land.
This, and other examples like it, is called an Easement.
How Easements Work in Practice
You probably already know that your ownership of a block of land is registered with your State’s Titles Office.
They keep a record of who owns what, which you find on a document called a Title. They also keep plans of how to determine the extent of the “what” that you own, which set out the boundaries of your parcel of land and that of neighbours, roads, and the like.
When you are buying a property, one of the things your real estate lawyers will do are searches to confirm what you are buying and whether it is subject to any encumbrances (which we discuss here).
One encumbrance that might come up in those searches is an easement. Typically you might identify the easement on the:
1. title search; and/or
2. plan of the lot you are purchasing.
However, sometimes that information is only half the story. It might only tell you who the easement is in favour of, or where the easement is located, with perhaps a generic description of some sort.
But what it doesn’t tell you is any details that might sit underneath the easements, with more information on exactly who is supposed to do precisely what.
The Problem of Covenants within Easements
This highlights the challenge that the new Property Law Act 2023 is trying to address.
Searches will only get you so far – they will identify a registered easement and give you some basic information, but they don’t inform you about the covenants that run hand in hand with the easement.
And, until now, those covenants were not binding on later purchasers of property.
So in practical terms, you might have an easement in your favour with a covenant that requires your neighbour to maintain a common fence (known as a “positive covenant” because it requires them to do something). If the neighbour sold their land, the easement might technically continue but the underlying covenant is not binding on the new owner.
To take another example, adjoining owners might agree to an easement paired with a negative covenant that prohibits one owner from building a fence higher than 1.8 metres or from obstructing a particular view (known as a “negative covenant” because it requires them to refrain from doing something).
Again, if the block was sold that covenant would not bind the new owner.
This, of course, has resulted in many disputes over the years.
And it’s all changing in 2025, with the new provisions of the Property Law Act 2023.
How Are Easements Changing?
The new PLA seeks to address this issue by making some significant changes to this area.
First, section 65 of the new Act says that a:
1. covenant contained in a registered easement over land;
2. whether positive or negative (meaning, it makes you do something or prevents you from doing something);
3. in relation to the “use, ownership or maintenance” of the burdened land (meaning the land that has the easement on its title),
will bind subsequent owners.
So far, it's pretty clear – covenants that tick off the necessary boxes will continue to bind subsequent owners.
But it immediately begs a question...
“Use, Ownership or Maintenance” - Ripe for Dispute
To bind later owners, the covenant in question needs to be in relation to the “use, ownership or maintenance” of the land, so that’s obviously going to be a critical phrase to examine.
The new Act offers a few examples of what does meet the description in section 65(3):
1. To maintain or repair the burdened land;
2. To construct, maintain, repair or replace improvements or infrastructure on the land or in connection with the easement;
3. To pay for or contribute to the performance of an obligation mentioned in (1) or (2);
4. To pay for or contribute to rates or taxes;
5. To indemnify a party to the easement in connection with its use;
6. To insure, pay for or contribute to insurance in connection with the use of the easement.
But, critically, this is not an exhaustive list. So there could be innumerable things out there just waiting to be binding on subsequent owners which weren’t contemplated by the drafters.
This, we suspect, will be an area that prompts a reasonable number of disputes in the coming years, as one party tries to argue that a covenant meets the definition and the other tries to argue the opposite.
Retrospective Action
Generally, laws only apply to things that happen after the law commences, for the obvious reason that it is difficult to comply with laws when you don’t know they exist.
These changes, however, are specifically said to be “retrospective”, meaning they apply to covenants attaching to easements created prior to the Act coming into force.
What does this mean in practice?
It means that if you bought a property in 2023 with an easement and associated covenants in your favour from 2015, you can be confident that those covenants will bind a purchaser of the other property in the future.
Personal Covenants Not Binding
If Party A and Party B enter into covenants attaching to an easement that are expressed as being personal to the parties, then they won’t bind later purchasers.
So, if you want to enter into some kind of enforceable easement-like arrangement with your neighbour but neither of you care to bind everyone down the track, then you can agree that between yourselves.
Avoiding Confusion with other Covenants
If you’ve ever bought property in a development or estate, then there’s a good chance you’ve had to sign up to a different type of “covenant”.
That’s not what these changes are about, which relate only to covenants attached to easements.
Those kinds of independent covenants are different creatures with different rules.
Easement on Title – Seek Advice!
If you’re buying or selling land, and see any kind of easement in the documentation, get advice (and probably more information) about exactly what that means for you.
While many easements and covenants are quite benign, some contain obligations that you simply might not want to be signing up for.
At the very least you should go in eyes wide open so you don’t get an unexpected knock on the door from your neighbour welcoming you to the neighbourhood and reminding you it’s nearly time to paint the fence.
And because this new legislation operates retrospectively, don’t assume that you can squeak through with a purchase in the first half of 2025 without any impact – there's a good chance you could end up with unexpected consequences!
For all your easement, covenant and property law needs, reach out to The Real Estate Lawyer today.
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