Easements are an essential yet often misunderstood aspect of property law. They provide the legal framework for one person to use another’s land for a specific purpose, such as providing access to a shared driveway or utility. The rules surrounding the enforcement of certain obligations tied to these easements—specifically, positive covenants—have historically been a point of contention. In Queensland, the introduction of the new Property Law Act 2023 (Qld) (the Act) will aim to clarify these complexities in the circumstances where the ownership of property changes hands.
The Issue: Positive Covenants and Their Enforcement
Traditionally, easements have been accompanied by covenants, which are promises to either refrain from doing something on the land (a “negative covenant”) or to actively do something, such as maintain a shared area (a “positive covenant”).
In Queensland, there has been a longstanding issue in enforcing positive covenants when a property is sold. Previously, these obligations did not automatically apply to the new owners of the property which would often lead to disputes over the rights asserted by a registered easement. For example, imagine a new homeowner refusing to maintain a shared fence, causing damage to a neighbour’s property. Previously, such obligations didn’t automatically bind new owners, which would often lead to disputes. As a result, the neighbouring property owner who is benefitted by the easement could be left with no means to enforce critical maintenance or repair obligations.
The Solution: Section 65 of the Act
Section 65 of the Act introduces significant reforms to ensure covenants attributed to easements are reliably enforced on successive property owners.
The key provisions of Section 65 include:
- Section 65(2): Any covenant (whether positive or negative) attached to a registered easement will automatically bind future owners of the burdened land unless it is expressly stated to be personal to the original parties of that easement.
- Section 65(3): If the original easement agreement specifies that the covenant is personal to the original grantor and grantee (the parties involved at the time of the easement’s creation), the obligations will not pass to future owners. This ensures that certain agreements remain private between the original parties if that was their intention.
Section 65 of the Act also operates retrospectively, meaning easements created before the new legislation are still subjected to the new provisions. Any pre-existing positive or negative covenants in a registered easement that affects the use, ownership, or maintenance of the land will apply to future owners, regardless of when the easement was established.
This is significant because it eliminates uncertainty for property owners who might have purchased land with “older” easements. For example, a property owner who purchased land in 2024 with an easement created in 2014 can now be confident that the terms of the easement will continue to apply to future owners of the property, even though the easement was established under the previous legislation.
No Contracting Out
To ensure the effectiveness of these reforms, the new Act also clarifies that parties cannot “contract out” of the new laws. Unless the original easement specifically states that the covenant is personal to the original grantor and grantee, the covenant will bind future owners. This provision prevents attempts to bypass the law and ensures that positive covenants in easements are consistently enforced.
Effectively, a property owner cannot enter into a contract with a neighbour that would exempt them from the obligation to maintain a shared driveway, even if both parties agree to such an arrangement. The “no contracting out” provision ensures that the new rules apply to all easements, regardless of any private agreements between property owners.
Why This Matters
The Act represents an important step in clarifying the obligations tied to easements in Queensland. For property owners, these changes provide certainty, particularly when purchasing land subject to easements. The new rules ensure that obligations are more predictable and enforceable, reducing the likelihood of disputes between neighbours or other stakeholders.
For property developers and legal professionals, these changes streamline the process of dealing with easements and covenants, ensuring that both positive and negative obligations tied to the land are clearly understood and applied across successive owners.
Conclusion
By ensuring that positive covenants are enforceable across different owners, the Act provides greater certainty and fairness for property owners, reduces the likelihood of disputes, and can potentially contribute to increased property values. Understanding these amendments is crucial for anyone involved in buying, selling, or managing property in Queensland.
Navigating these upcoming changes requires a thorough understanding of the Act’s provisions. For expert advice on how these changes might impact your specific situation and to ensure your property contracts and easement agreements comply with the new legal framework, consult with a qualified property lawyer at Rouse Lawyers.
Disclaimer
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Accordingly, the information on this site is provided with the understanding that the authors and publishers are not providing legal advice. As such, it should not be used as a substitute for consultation with professional legal advisers. Before making any decision or taking any action, you should consult with a professional lawyer from Rouse Lawyers.
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