Can Easements Be Removed or Changed in WA? Legal Options Explained

An easement in property law is one of the most misunderstood but important areas in land ownership in Western Australia. If it is access, drainage, utilities, or joint use of the land, an easement can directly impact how you use, develop, or sell a property. Most land owners are surprised to discover that the easements need not be permanent, as in certain circumstances, they can be removed or varied under WA law.

In this blog, the reader will learn how easements are used in Western Australia, how and when an easement can be changed or removed, strictly within the Australian law.

What Constitutes an Easement Under WA Property Law?

In Western Australia, easement is defined as a non-possessory interest that emerges in a title of the land under the Transfer of Land Act of 1893 (WA). It signifies the right of one of the parties to the use of a part of the other party’s land for a stated purpose.

Some of the easements on property in WA may include:

• Rights of way for access
• Drainage and sewage easements
• Utility and service easements
• Party wall or support easement

Because easements can be considered as registered interests, meaning that they automatically bind the owners unless they are lawfully removed or varied.

Can Easements be removed or changed in WA?

Yes, easements can be removed or modified in Western Australia, but only by statutory and accepted means. There are no informal agreements or verbal consents that will suffice. Any change needs to be made by statute and correctly documented, then registered.

The feasibility of removal or variation depends on various factors:

• Purposes of the easement
• Whether it is any longer necessary
• Consent of the benefiting party
• Impact on surrounding properties

Methods of Removal or Modification of an Easement Under WA Laws

Knowledge about the legal ways through which removals or variations of easements can help property owners to make legal decisions.

1. Mutual Agreement Between Landowners

The easiest method is for the parties to settle themselves, i.e., the owner of the property burdened by the easement and the benefitting party. In this case, a deed of variation/release is drawn up and lodged with Landgate. This has often been recommended by property lawyers Perth WA, particularly when the easement has rendered itself redundant, for example, if access is no longer needed due to new infrastructure.

However, lenders or the concerned local or utility authorities may also be required to give consent if they have any interest in the easement.

2. Court Application for Modification or Extinguishment

However, in cases where an agreement cannot be reached, an application can then be made to the Supreme Court of Western Australia under section 92 of the Transfer of Land Act 1893 (WA). The Supreme Court retains the discretion to vary or extinguish an easement when it is satisfied that:

• The easement is no longer in use or is obsolete
• Continued existence imposes an unreasonable hardship
• Removal will not cause significant harm to the beneficiary

All this is a complex evidence-based process, which sometimes involves the need for professional legal/planning advice by expert WA property lawyers.

3. Easement Extinguished by Unity of Ownership

An easement can also be automatically terminated when the same person owns the land burdened by the easement as well as the land benefiting. This principle is recognised under the easements property law in Western Australia. After gaining unity of ownership, the easement will lose its legal purpose. In this case, the easement can be removed by registering the particulars appropriately.

4. Statutory Removal Through Planning or Development Approvals

In certain instances, easements can also be altered or extinguished as a consequence of a notifiable development approval, subdivision plan, or road reservation or re-alignment. These modifications or extinguishments can result in the approval of local or State authorities when it serves the interests of the public.

Understanding Easement Rights and Property Disputes

Many times, easement disputes come up when property owners are confused with regard to easement rights on property, as well as when they seek to interfere with those easement rights. This can lead one to be faced with an injunction, a demolition order, and compensation claims.

It’s at this point that property dispute lawyers Perth become vastly important, evaluating title documents for enforceability and resolving disputes either through a legal settlement or a legal suit.

Risks Involved with Informal Change Attempts

Mistakes in trying to remove and modify easements without following proper legal procedures may lead to:

• Invalid title transactions
• Council enforcement action
• Court-ordered restoration of access
• Reduced property value or failed settlements

Expert advice that can be obtained from the top property lawyers in Perth will ensure that the laws pertaining to land in Western Australia are complied with.

Conclusion

In order to change or remove an easement, specific statutory requirements must be followed. Whether through agreement, application, or planning approval, each avenue raises specific implications that must be well managed.

In order to make sure that an easement modification has occurred and that it meets your needs, you must consult the top property lawyers in Perth.