Join Australia's most dynamic and respected property investment community

Five days till settlement and I find out there is an easement.

Discussion in 'Legal Issues' started by Daniel Jurin, 1st Oct, 2016.

  1. Daniel Jurin

    Daniel Jurin Member

    Joined:
    4th Oct, 2015
    Posts:
    16
    Location:
    Qld
    Today is Saturday the 1st of October and a house I am buying settles next Friday the 7th (Queensland). Although I have several investment properties, this one is for my family to live in. Yesterday I received an email from my solicitor informing me of the easements on the property and there is a sewerage pipe running the full length of the property just inside the boundary/fence. The house went unconditional a while back so I am concerned that I have no choice but to go ahead with this purchase whether I am concerned about the sewerage pipe or not.

    The easement was not on the contract. In a phone call with my solicitor she said the sellers were not required to disclose the easement on the contract because it was not on the title and also because the house was built in the 1980's.

    I would like some advice as to whether I have any cause to cancel this purchase based on the fact that they did not inform me of the easement. Or, is it totally my fault for not getting my solicitor to do a search for easements before I let the contract go unconditional?

    Also, should I have concerns about there being a sewerage pipe running inside the boundary of the property? Or is it a total 'non-issue'?

    I have always tried to avoid purchasing properties with such easements in the past and the fact that I am finding out only days before settlement is very frustrating.
    I appreciate any input.
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,536
    Location:
    Sydney or NSW or Australia
    Unless it affects your ability to build on the site it's a non-issue. It runs along the boundary, you can't build on the area anyway.

    What is shown on the sewer diagram?
     
    JacM and MTR like this.
  3. bashworth

    bashworth Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    104
    Location:
    Footscray
    It is a non issue. . . .unless you plan to build over the sewer line in the future.

    Around 40-50% of all sewered blocks will have an easement for a sewer,
     
    JacM and MTR like this.
  4. Bran

    Bran Well-Known Member

    Joined:
    20th Jun, 2015
    Posts:
    3,209
    Location:
    At work
    I spoke to Darryl from Certus Legal about this once. I'm pretty sure he said it was a common means to crash a contract right up to settlement. Speak to him maybe

    But, otherwise, who cares? You can't build there anyway, and you can get approval to build over an easement/sewer, even if you could.
     
    JacM likes this.
  5. Sonamic

    Sonamic Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    935
    Location:
    Sunny QLD
    I would say non issue. Unless there is a manhole cover in your yard you'd never know it was there.
    Obviously you like the house itself enough to buy for a PPOR, so is it worth cancelling for something near 3 metres underground?
     
    JacM likes this.
  6. York

    York Finance Broker Business Member

    Joined:
    24th Jun, 2015
    Posts:
    1,619
    Location:
    Sydney
    The only issue you could encounter is if you have a plan to purchase the neighouring site for the purpose of a development. Then you might have a problem. Not unworkable, but just expensive to work with. If you have no plans for any kind of development that includes the next door site (on the same side as the easement) then I don't see any problem.
     
    Leo2413, JacM and Sonamic like this.
  7. wombat777

    wombat777 Well-Known Member Premium Member

    Joined:
    18th Jun, 2015
    Posts:
    1,409
    Location:
    33°41'24.7"S 150°55'34.3"E
    I had this issue with the land I bought for my PPOR. It just restricts the trees I can plant in the backyard.

    Not that I care. The location has been a gold mine for extracting equity :D
     
    Leo2413, JacM and Colin Rice like this.
  8. RPI

    RPI Property Lawyer, Town Planner Business Member

    Joined:
    19th Jun, 2015
    Posts:
    709
    Location:
    Brisbane
    Sounds like a statutory or unregistered encumbrance. If so seller was required to disclose on contract - it even says so right there on the contract. Seller would be in breach and you have termination rights as they can't comply with standard condition 7.2 of the contract among other things. May have rights at common law if it was material and therefore a latent defect.

    Are you sure it was your "solicitor" and not the admin/paralegal/conveyancing?? or other unqualified admin person that most firms use to run conveyances in QLD.

    If you are happy to email me the contract d.richards@certuslegal.com.au then I will have a look and provide my opinion
     
    Gingin, Magnet, Propagate and 6 others like this.
  9. jrc

    jrc Well-Known Member

    Joined:
    20th Jun, 2015
    Posts:
    76
    Location:
    Regional NSW
  10. dabbler

    dabbler Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    2,658
    Location:
    Sid en e - olympic city
    If you had rights, you may be able to ask for an adjustment.

    I do not think it is worth exiting just due to an easement, unless it buggers up some building or development plans.

    Heaps of properties have easements, I think it is silly to dismiss anything with an easement just for having one, sewer and stormwater must go somewhere.
     
    JacM and Joynz like this.
  11. JacM

    JacM VIC Buyer's Agent Business Member

    Joined:
    12th Jul, 2015
    Posts:
    1,106
    Location:
    Melbourne, Australia
    Good thread. Informative and to the point and something that will probably be something many buyers will encounter.
     
    Scott No Mates likes this.