BLOG

Disclosing Statutory Easements on Contract

If you are selling your property, you should apply your mind to whether or not there is any underground or overhead infrastructure over your land which benefits third parties e.g. It may be that the neighbour on your high side is running his stormwater through your property, or perhaps there is data cabling underground which benefits other people in your street. These sorts of items can be considered statutory easements, and whilst they may not be registered on your title you have a legal obligation (if you sign a standard contract) to disclose these things.

 

If you don’t disclose the existence of these items then the buyer may have rights either to terminate the contract or sue you for compensation. Therefore if you are selling your property and you are unsure whether any statutory easements or third party rights in respect of your land exist, you should contact us for guidance. One recommendation we would make would be to conduct a drainage search with the local council, which should identify the existence of any unground drains or sewerage pipes crossing your property. If there are unground drains etc. then you could attach the search to the contract and make reference to the search in the contract.

 

The other option is to just make a general disclosure of statutory easements, however this may in some circumstances not be sufficient to discharge your disclosure obligations to the buyer and therefore could give the buyer the rights referred to above to either terminate or make a claim against you for compensation.

 

As well as the property being affected by statutory easements, the property may also be affected by registered encumbrances i.e. easement or other encumbrances (e.g. council covenants) which are registered on title. You must also disclose these by describing the encumbrance on the contract as it is described on the title search. Therefore it is imperative that you or your selling agent conduct a title search prior to the contract being drawn up to ensure you are aware of and have an accurate description of any encumbrances registered on the title.

For more detailed information or advice, please contact one of our experienced, qualified conveyancing specialists :        

 07 3844 0188   📩 law@gmlaw.com.au