New QLD PLA 2023: Changes to easements

Key Takeaway Points

• On 1 August 2025, the new Property Law Act 2023 will modify easements.
• Covenants in registered easements will be enforceable against not only the original parties to the easements, but also their successors in title in full.
• The enforceability of easement covenants (ie agreed terms and conditions) will apply retrospectively and regardless of whether the covenant is positive or negative.

Introduction

The Property Law Act 2023 (Qld) (PLA) is set to commence on 1 August 2025 and will introduce a suite of changes to streamline and modernise Queensland’s property laws. We have previously provided an overview on some of the changes that will apply from the PLA’s fast approaching commencement date, which may be accessed here:

• Changes to Property Law in Queensland – RedeMont

• Understanding QLD’s New Seller Disclosure Regime – RedeMont

This article will provide insight into the provisions regarding easements that have been modified by the PLA. In particular, we will explain how the PLA aims to bring certainty to the law in relation to the enforceability of terms and conditions in registered easements when land is transferred to a new owner.

What are easements and easement covenants?

Easements over part of or the whole of the lot are only created upon registration on title with Titles Queensland. Once registered, an easement grants a party the right to use another party’s land for a specific purpose. Such purposes may be for right of way, water supply, public thoroughfare, sewerage and access and services.

Registered easements may contain covenants, the two types being:

1. negative covenants – these restrict the grantor of the easement (ie landowner) from carrying out certain actions eg. preventing a landowner from constructing a building on the area burdened by an easement; and
2. positive covenants – these require a landowner to carry out certain actions eg. obligating an owner to maintain the area burdened by the easement.

It has been unclear in Queensland under both common law and the current Property Law Act 1974 (Qld) whether the burden of a positive covenant becomes enforceable against new owners who buy land which is burdened by an easement but were not parties to the easement when it was originally granted.

Easement covenants will bind successors in title

Upon commencement of the PLA, a covenant in a registered easement, regardless of whether it is positive or negative, will bind all parties to the easement and each of their successors in title. This new change will apply retrospectively, meaning that it will apply to all existing easements . The greater certainty provided by these changes is aimed at raising the utility and value of registered easements.

Conditions surrounding enforceability

For an easement covenant to be enforceable, the covenant must impose an obligation that relates to the use, ownership or maintenance of the relevant land. The PLA provides a non-exhaustive list with examples of what these obligations may be, which include:

1. maintenance or repair of the land;
2. construction, maintenance, repair or replacement of improvement or infrastructure used in connection with the easement on the land;
3. payment for or contribution to the performance of an obligation described above;
4. payment towards rates and taxes relating to the land;
5. indemnification of a party to the easement in connection with the use of the easement; or
6. contribution towards insurance in connection with the use of the easement.

Exceptions to enforceability

Easement covenants will not be enforceable against successors in title if the covenant is expressed to be personal between the parties to the easement. If the parties wish to meet this exception, it is likely that written agreement will be required within the easement document as an evidentiary basis for the parties’ intentions.

Further changes

Additional changes to easements and rights of use will be introduced upon commencement of the PLA. Section 181 expands the power of the court to modify or extinguish an easement or covenant burdening land by:

1. enabling the court to include terms in easement documents in relation to the use, repair or maintenance of the land;
2. removing the qualification that the covenant must be restrictive for the court to exercise its powers; and
3. allowing the court to modify and extinguish easements or covenants under building management statements if it is reasonably necessary, and just and equitable in the circumstances, and the building management statement cannot be amended due to the inability to obtain lot owners’ signatures to consent to such amendment.

Section 180 of the PLA governs applications to the court for the right of use over another person’s land (which may be made by way of easement or another right of use). It will impose additional conditions for an application to be successful. These provisions include that:

1. the proposed right of use of the neighbouring land is reasonably necessary for the effective use and development of the land; and
2. the proposed right of use of the neighbouring land is consistent with planning legislation.

Next steps

Our Property team is happy to assist if you have any queries about how the changes to easement provisions may affect you / your clients.

Stay informed with our upcoming article explaining the changes to assignment of leases in Queensland that will come into effect under the PLA on 1 August 2025.