Issues paper no 13 invites contributions in relation to the law of easements in Tasmania.

Disputes about easements can have a huge emotional and financial cost to Tasmanians. This is highlighted by the way in which this project came to the attention of the Institute. In suggesting a review of the law of easements, a member of the public detailed the significant emotional, personal and financial costs involved in a dispute about the use of a right of way. Ultimately, this dispute led the dominant owner to sell their property and move. Underlying this dispute is a stark reminder of the need for rights attaching to land to be easily identifiable and clearly understood.

This Paper highlights a number of problems associated with easements in Tasmania. First, it asks whether the law on access to an easement should be clarified. Good neighbourly relations can be destroyed if the expectation of the dominant and servient owner in respect of use of the easement differ greatly. A clearer delineation of when and how an easement can be used may well eliminate many of the disputes that presently occur. In addition, the paper asks whether an inexpensive dispute resolution mechanism should be formalised within the legislation.

The second area of concern deals broadly with topics of the creation and removal of easements. The present provisions regarding the creation of easements reflect a time long past. Specifically, and with registered land systems now dominant in Tasmania and Australia, the paper asks what role should possessory or prescriptive easements have in a Torrens system. Similarly, it asks how the common law surrounding abandonment of an easement should interact with a registered land system. The paper also asks whether the types of easements that can be created should be altered to permit easements relating to energy generation and heritage conservation.

Finally, and given that at present, easements require both a dominant and servient tenement – should Tasmania adopt American principles that accept the creation of easements without any identifiable dominant tenement.

Any group or person is invited to respond to this issues paper. Following consideration of all responses it is intended that a final report will be published, containing recommendations.

The Institute invites responses to the Issues Paper by 29 May 2009.

If you would like to receive a copy of the Issues paper, please contact the Institute.