Easements, Encroachments, and Hidden Title Issues Explained
When purchasing or leasing property in Australia, the assumption is that the title is clear and free of complications. However, hidden title issues such as easements, encroachments, and unregistered interests can significantly impact ownership, use, and future value. Understanding how Property & Leasing Law addresses these issues is crucial for landowners, investors, and tenants alike.
For instance, a buyer may discover after settlement that their neighbour has a registered easement allowing access across their driveway. This could limit development opportunities or cause ongoing tension.
What Are Encroachments?
Encroachments occur when a structure or improvement extends beyond the legal property boundary. This might include fences, retaining walls, garages, or even sections of a house. Encroachments can arise from survey errors, misunderstandings about boundaries, or deliberate actions.
Under Australian Property & Leasing Law, encroachments can lead to:
Boundary disputes between neighbours
Claims for compensation
Orders to remove or modify the structure
For tenants, encroachments may complicate lease agreements and responsibilities for repairs. For owners, unresolved encroachments can prevent the sale or refinancing of the property.
Other Hidden Title Issues
Beyond easements and encroachments, hidden title problems can take many forms:
Unregistered interests - such as informal rights of way or oral agreements with neighbours.
Covenants - restrictions on land use, such as prohibiting certain types of construction or activities.
Outstanding mortgages or charges - which may not be properly discharged.
Adverse possession claims - where someone has occupied land for a long period without legal title.
These issues can affect the enforceability of leases, the transfer of property, and the legal obligations of landowners.
The Role of Due Diligence
Identifying hidden title issues early can prevent costly disputes. Buyers, tenants, and investors should undertake thorough due diligence, including:
Reviewing property searches and title documents
Conducting professional land surveys
Checking for easements, covenants, and restrictions
Consulting property solicitors before contracts are signed
For businesses, due diligence ensures that leases are enforceable and that premises are suitable for intended use.
Resolving Easements and Encroachments
If easements or encroachments are discovered, several legal options may be available:
Negotiation with affected parties - often the quickest and most cost-effective solution.
Mediation - to resolve disputes without going to court.
Court orders - where disputes cannot be resolved informally. Courts may order removal, modification, or compensation.
Title insurance - to protect against future claims related to hidden title issues.
Why Legal Advice Matters
Property law in Australia is highly technical, and errors can have lasting financial consequences. An experienced solicitor can:
Review contracts and lease agreements for hidden risks
Advise on easement and encroachment disputes
Assist with boundary adjustments or survey corrections
Represent clients in negotiations or litigation
Whether you are buying, leasing, or selling property, legal advice ensures your rights are protected and risks are minimised.
Easements, encroachments, and hidden title issues can transform what seems like a straightforward property deal into a legal headache. By understanding how Property & Leasing Law applies to these issues, and by engaging in thorough due diligence with professional advice, buyers, owners, and tenants can safeguard their interests and avoid costly disputes.
At New South Lawyers, we specialise in Property & Leasing Law and can help you identify and resolve easements, encroachments, and hidden title issues before they become major problems.
