A driveway that appears to belong to the property, a sewer line at the back fence, or a neighbour’s gate across a side passage can all raise easement issues before settlement. These details can affect how you access, use, renovate and eventually sell a property. They are not always deal-breakers, but they should never be treated as a minor item in the contract.

For NSW buyers, the key is to identify the easement, understand exactly who has rights over the land, and get clear advice before the settlement date creates unnecessary pressure.

What an easement means for a NSW property buyer

An easement is a legal right that allows a person, authority or neighbouring property owner to use part of someone else’s land for a particular purpose. It is usually registered on the title and commonly shown on the deposited plan. The land burdened by the easement is called the servient tenement, while the land that benefits is the dominant tenement.

In practical terms, an easement may give a neighbour a right of carriageway over a driveway, allow Sydney Water or another authority to access pipes, or reserve an area for drainage, electricity or telecommunications infrastructure. The owner still owns the land, but their use of the affected area is restricted by the easement’s terms.

The effect depends on the wording and location. A narrow drainage easement along a rear boundary may have limited day-to-day impact. A right of way through the only usable side access, however, can materially affect privacy, parking, building works and buyer appeal when you sell.

Where easement issues before settlement are found

Your conveyancer or property lawyer should review the contract for sale and the title documents as early as possible. In NSW, a contract generally includes prescribed documents, such as a title search, deposited plan and relevant dealings. These documents can reveal registered easements, restrictions on use and other interests affecting the land.

Do not rely only on the marketing photographs, an agent’s description or what you see at an inspection. A registered easement may be difficult to spot on the ground. Equally, a visible access track or pipe may not be where the plan suggests, which can raise questions about encroachment, informal use or whether further investigation is needed.

A careful review usually involves checking the title, the deposited plan and the instrument that created the easement. The instrument matters because it sets out the purpose, dimensions, rights and obligations. A notation such as “easement for drainage” is a starting point, not the complete answer.

The practical questions that matter

The first question is where the easement sits. If it runs beside a fence, it may affect landscaping or a future pool. If it crosses the middle of the allotment, it can constrain the entire building envelope. Width, access points and the ability to bring machinery onto the site are especially relevant for buyers planning renovations or redevelopment.

Next, ask who benefits from it and how it can be used. A private right of way may permit neighbouring owners, tenants, visitors and service providers to pass over the land. An easement in favour of a public authority may include rights to enter the property for inspection, maintenance and repair. That can mean temporary disruption, excavation or a requirement to keep the area accessible.

You should also consider maintenance. Some easement instruments allocate repair costs between the affected owners. Others are less clear, creating potential for disagreement when a shared driveway cracks, drainage fails or access becomes obstructed. A low purchase price does not compensate for a vague arrangement that produces recurring neighbour disputes.

Finally, compare the legal documents with the physical property. Is a shed, fence, retaining wall, deck or carport built within the easement area? Has the neighbour installed a gate that restricts access? Are vehicles regularly parked on a right of way? These facts may not change the registered easement, but they can expose a problem that needs to be resolved or priced into your decision.

Building plans can change the level of risk

Easements are particularly important for buyers who intend to extend, build a granny flat, install a pool or undertake a knock-down rebuild. Councils, certifiers and service authorities may impose conditions or refuse consent where proposed works interfere with an easement.

For example, building over or near a sewer easement may require the consent of the relevant authority and specific construction standards. Even where approval is possible, it may add engineering costs, delay the project or require a redesigned layout. A developer or investor should not assume that a large block has a large usable building area.

Restrictions on the use of land are different from easements, but they should be reviewed at the same time. A restriction may limit building materials, dwelling types, subdivision or other development outcomes. Positive covenants can also impose obligations, such as maintaining drainage works. Together, these registered interests can have a significant effect on what the property is worth to you.

What to do if an easement is identified after exchange

Finding an easement after exchange does not automatically entitle a buyer to end the contract or delay settlement. Your options depend on what was disclosed, the contract terms, the nature of the issue and whether the vendor has met their obligations under NSW conveyancing law.

Act promptly. Your lawyer should assess whether the easement was properly disclosed in the contract, whether the documents accurately identify the affected land, and whether there is evidence of a separate issue such as an encroachment or unapproved structure. The legal position can be very different where a buyer was given clear title documents before exchange compared with a material issue that was omitted or misrepresented.

Depending on the circumstances, practical outcomes may include seeking further information from the vendor, negotiating a price adjustment, requiring an item to be removed before settlement, or entering a written agreement about access or repairs. In more serious cases, legal advice may be needed on termination rights or other remedies. Do not simply refuse to settle based on an assumption that the easement is unacceptable. A missed settlement can expose a buyer to default consequences.

Speak to the right authorities when necessary

Not every easement requires outside enquiries, but some do. If the property is affected by sewer, drainage or utility infrastructure, enquiries with the relevant authority may clarify access rights, building restrictions and approval pathways. For a proposed development, early input from a town planner, surveyor, builder or certifier may be sensible alongside legal advice.

If a private access easement is involved, it can also be useful to understand the current arrangement between neighbours. That said, verbal assurances are not a substitute for the registered terms. A friendly neighbour may move on, and an informal arrangement may not bind future owners.

For strata properties, the review should extend beyond the lot title. Easements can affect common property, access, parking, services and redevelopment. By-laws, strata records and any exclusive-use arrangements may provide important context.

A sensible pre-settlement approach

The best time to investigate an easement is before you become contractually committed. If you are considering a property with visible shared access, drainage infrastructure, a narrow driveway or unusual boundary features, raise it before exchange and make your intended use clear to your conveyancer.

After exchange, keep the process moving while enquiries are made. Settlement dates in NSW contracts are enforceable, and last-minute discoveries leave less room for negotiation. A practical property lawyer can explain the documents in plain English, identify the commercial risk and advise on the options available under your contract.

An easement does not necessarily make a property a poor purchase. The right question is whether its limits, costs and access arrangements are understood well enough for you to proceed with confidence. Getting that answer before settlement is far easier than managing an avoidable dispute after you have the keys.