Advice Needed for a Landed Unit with Easement Running Through the Middle

Hamlet on 28/07/2020 - 16:29

Hi all,

Recently been interested in a small landed unit in VIC. After getting the Section 32 Plan of Subdivision, I realise there is a diagonal easement for 'drainage and sewer' purposes measuring 3.05m running across the middle of the land. It was alarming as almost half the dwelling sits on the easement.

I called the Water Authority and after checking, they said this is an 'empty easement' with 'no assets', and that should I need to build any structures on the easement in the future, all I need is to put in an application and they will approve it no problems. When I asked how that could be so, they said it could be that the easement was probably drawn up a long time ago but plans changed and they decided to set up the sewer line elsewhere — and that seems to so because there's a sewer pipe just on the street in front of the unit. I also called the Local City Council and they confirmed that it was an 'empty easement' but I'll still have to put in applications whenever I want to build a structure over them — which is a nuisance but not a dealbreaker if they can always approve them.

The dwelling was built in 1990. Because Section 32 only includes building works done in the past 7 years, there is no legal copy of the original Building on Easement Approval. The current Vendor has only been at the Unit for 8 years so they don't have a copy of the Approval either. The easement extends across a few other buildings on the street too — since so many buildings currently sit on the easement, I gather that perhaps the easement is not that big of a deal and I can bid for the unit without having a copy of the Approval too?

Does anyone here have any experience with 'empty easements'? To what extent do 'empty easements' hinder future development — whether small (e.g. fences, pergola, etc.) or big (e.g. knock-down rebuild)?

Keen to hear your thoughts! Thanks all :)

Home & Garden

Comments

  • [Deactivated] on 28/07/2020 - 16:42
    +4

    Personally, I'd want to have the easement removed before I am willing to make an offer.

    As long as there is a possibility that the easement can be used, you're always going to stress over it and when it comes time to sell, the next owner will also take the easement into consideration.

    When it comes to contracts, whether it be DAs or easements, it isn't a done deal until it is a done deal.

  • oscargamer on 28/07/2020 - 16:55
    -1

    What does your solicitor / conveyancer tell you?

    • chack008 on 28/07/2020 - 18:25
      +3

      He said downvote comments like this on ozbargain

      • oscargamer on 28/07/2020 - 19:20

        Hmmm. Makes sense. Because asking a professional is such a bad idea. I'd much prefer to spend hundreds of thousands based on a poll of keyboard experts….

        • resubaehtgnolhcs on 28/07/2020 - 20:18
          +2

          but we are professionals … just ask G.Harvey

    • djkelly69 on 28/07/2020 - 21:08

      No idea why you are getting negged for this, this is exactly what OP is (or should be) paying a professional for.

    • Hamlet on 28/07/2020 - 22:34

      She didn't really give me much other than to check with the Water Authority and Council.

  • Porker on 28/07/2020 - 17:42
    +3

    I'd suggest NOT buying it if it's your intention to develop the site later - building over easements are a hassle.

    I have an easement on one of my properties and it's at the rear of the site. I was told that it was 'empty' too, but that's not accurate in that it contains a private drain. Dial-before-you-dig, Council and the local water authority do not have any of 'their' assets in there, but the easement services stormwater drainage for at least two upstream properties.

    The only way to be absolutely sure that the easement is empty is to literally dig down 1 metre into the easement for its width. Upon doing this, I found the pipes and traced their purpose (when I was on-site).

    In the situation of private drains, I cannot simply cut it or do away with it. The private drains are also based solely on agreement of the two land owners, such that they are not on any agreements, s32 etc. The agreement was made well before either myself or the servicing property owners were in the area, but the service must be maintained. If not for legal purposes, but practical as removing the pipes would've simply had the upstream properties flooding mine when it rains.

    I've been to VCAT no less than 4 times because of this - not instigated by me, but the downstream neighbour gets flooded and sued me. He actually opened the easement on his property and blocked the pipe. None of my stormwater drains into the private drain, such that the case was dismissed. He was an idiot and re-sued me and then appealed the decision using barristers.

    If it were me, I'd be having the vendor do the leg work to remove the easement if indeed it is redundant.

    • [Deactivated] on 28/07/2020 - 17:59

      How did the appeal go? I imagine he was wasting his time.

      (Yeah. If council approvals was as easy as what REAs make it out to be, they would have done it and advertised the fact and fetch a better price.)

      • Porker on 28/07/2020 - 18:13
        +3

        Short answer is, yes, he wasted his time. Long answer below.

        He lost the first case and literally that night, submitted a new case against me with the exact same information. I had to front VCAT a second time even though my neighbour was informed he'd lose if he re-submitted the same information. Case dismissed again on legal grounds, not factual grounds. That is, the court had already made a decision so couldn't re-try the same case/information.

        Neighbour accused the judge of being biased, so submitted a third case with slightly amended information but fundamentally the same. At that third hearing, the smug neighbour was 'I'm going to destroy you this time, I really wish you luck as you'll be paying me $36,000 in damages if I win'. Same judge that heard the first two hearings with same legal precedent prevented the hearing proceeding past an introduction.

        I then get a letter from a legal firm requiring me to do X, Y, Z or go to VCAT, with appeal on the first decision. It was clear they were just putting my neighbours words into legal format, as their claim was that the judge was biased to not hear the evidence/information at the second hearing. Just money hungry bastards really, as the barrister rocked up and was told off by the judge/member. Neighbour informed that any appeals can only be done on one of law, not opinion, and that that needs to be heard at the Supreme Court. During the whole hearing, I could see his barrister's laptop screen and he was simply browsing the internet for suits. He didn't care if he won or not - he was being paid.

        On another situation at VCAT with my neighbour (I've literally been there 10 times because of this neighbour), judge says to my neighbour, 'you both must be sworn in'. Would you like to be sworn in on the bible or would you like to make an affirmation to me personally?'. My neighbour responds 'neither'. The next 30mins is him arguing with the judge about how the judge is questioning his integrity and implying that he might be lying.

        Crazy…

        • [Deactivated] on 28/07/2020 - 19:21
          +1

          That is indeed crazy but that's what happens when people think they are lawyers (referencing Bunnings Karen).

        • Hamlet on 28/07/2020 - 22:42

          Bold move, was the barrister browsing TM Lewin suits?

          Poor neighbour who has you as his neighbour and to have a barrister who likes suits more than he likes his clients.

          • [Deactivated] on 29/07/2020 - 08:35
            +1

            @Hamlet: Poor lawyer. His career obviously hasn't panned out well and he is collecting scraps for cases.

      • MrHyde on 28/07/2020 - 18:14
        +2

        We currently have a private storm water drain going through our property as well - right through the middle. So much so, that we wanted to extend and build over it. Easiest option for us was to just pay for the relocation of the storm water drain for the neighbour to not come into our property, but to go the council storm water drain at the front of the property on the street. Cost about $8k all up - but it means we don't have any more other peoples pipes going through our property.

        • Seraphin7 on 28/07/2020 - 18:48
          +3

          Holy hell! A sensible, pragmatic solution to a problem that didn't devolve into whining about who is or isn't financially/legally responsible, but simply taking responsibility for sorting out a relatively minor hindrance, presumably for overall net benefit.

          A rare day on OzBargain.

          • MrHyde on 28/07/2020 - 19:38
            +1

            @Seraphin7: It wasn't easy - I didnt want to pay for it at first and got legal advice - which basically said that I could build over it and if the pipe causes damages or needs to be replaced; it would be the neighbours responsibility as there is no easement there.

            However, since we are building and in the course of laying the foundations, we break the pipe; then it is our responsibility. So, we took the decision of removing this headache from our lives once and for all. We couldn't imagine the cost or damage to our house if the pipe burst in the future.

            Tried to negotiate 50/50 with the neighbour; but he didn't want to hear it. His view was the pipe is there, it is fine and he doesn't want it moved.

    • Hamlet on 28/07/2020 - 22:37

      Thanks for sharing your experience. Sorry to hear the troubles an easement on your property has led to.

      The property I am looking at is a landed unit. Do you know if it's possibly to knock down landed units and rebuild? If that's not possible to begin with, then the property can remain as it is and there shouldn't be a problem?

    • Hamlet on 28/07/2020 - 22:46

      Also, how is it that the easement services as a stormwater drainage when neither the council nor the Local Water Authority have any assets there?

      How can I check if an easement is serving as a stormwater drain in such a case without digging 1 metre into the easement? I don't even own the property yet; surely there is some other way of checking without going around other people's property and digging it up?

      Lastly, in the case that the easement is empty and does not service stormwater, do you think it is a good idea to get the Council, Water Authority, and whoever manages stormwater drainage to send me an email as a written evidence that the easement is empty to defend against future implications that run contrary to their verbal statements?

      • Porker on 29/07/2020 - 10:13
        +1

        Stormwater discharge is a requirement of Council/Building Permit, however, your legal point of discharge (LPD) does not always need to be to (as example) the road/Council kerb.

        In my example, the upstream properties had their LPDs at the rear of their properties as that was the lowest point/level in their site.

        If this situation was to occur with newish developments and the drains are privately owned, then yes, the stormwater pipe would be recorded (generally) on Council records and come up in their system as a private asset. However, in the case of my situation, the pipe was there more than 30 years ago so doesn't come up on the Council system.

        The information may very well be in their archive records or something, but there's really no cause for them to sort through all those files which may or may not say something, such that their advice was to do the 1m dig review.

        Having a letter in hand from the authorities saying that there are no pipes/services in the easement does not protect you from future applications/scenarios. The nature of easement is to reserve land for a specific use. The surest way to protect yourself is to have the easement removed, if at all possible. As example, the easement may be a straight line cutting through multiple subdivisions/lots over several hundreds of metres. If your property is in the middle of that alignment, it's unlikely that it would be removed or deviated.

        If your property was at the end of the easement, then there might be valid argument that it's not required or it can be ended further away from your property.

        • Hamlet on 29/07/2020 - 17:30

          Sure, I'll keep this in mind. Thanks for your detailed answers. Appreciate it.

  • Euphemistic on 29/07/2020 - 09:32

    Anyone else struggling with what a ‘landed unit’ is?

    • Hamlet on 29/07/2020 - 09:34

      Ie, a subdivided plot of land that isn't an apartment or a townhouse.

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