Statutory easement rights
This information applies to all community titles schemes in Queensland.
An easement is the right to enter or use a section of land for a particular purpose by someone who is not the land owner. There are some situations where easements are in place according to the Land Title Act 1994 . These are called statutory easements.
This page explains when a statutory easement may exist and how to exercise your statutory easement rights in a body corporate.
It does not apply to other types of easements that may be created or recorded.
When a statutory easement may exist
In a community titles scheme, an easement can exist in either a lot or common property. It can also give rights to enter or use another lot or common property.
When a statutory easement is created, it automatically creates rights for the party the easement benefits.
A statutory easement may exist for accessing:
- building structure (common walls)
- utility services and utility infrastructure (wiring or pipes)
- shelter (a common property roof)
- projections (guttering, awnings or window sills)
- a building next to a boundary, where it is not possible to maintain the building without entering the adjacent lot or common property.
A statutory easement only exists for lots that are:
- on a building format plan of subdivision
- on a standard format plan of subdivision (registered on, or after 13 July 1997)
- on a volumetric format plan of subdivision
- a standard format lot in a scheme to be developed progressively, if there are no buildings on the lot.
For more information about the rights applying to each type of statutory easement, see part 6A, division 5 of the Land Title Act.
Exercising statutory easement rights
You can only exercise your rights under a statutory easement in a way that doesn’t unreasonably interfere with the use or enjoyment of a lot or common property (as per sections 67–70 of the Body Corporate and Community Management Act 1997 (the BCCM Act)).
The BCCM Act also refers to ancillary rights, which are additional rights that support statutory easement rights.
As a body corporate
A statutory easement may allow a body corporate to enter a lot to carry out work. This is different to a body corporate entering a lot or an exclusive use area to do an inspection or to carry out work on items not subject to a statutory easement.
A body corporate can record the ancillary rights and obligations that apply to a statutory easement in its community management statement. These will overrule any rights and obligations that would usually apply.
The community management statement for a scheme may also include a diagram of the utility services location.
As a lot owner
A statutory easement may allow a lot owner to enter another lot to carry out work.
For example, where the electricity switchboard in a two-lot scheme is located in the backyard of Lot A, and the safety switch for Lot B needs to be re-set. A statutory easement exists against Lot A allowing the owner of Lot B can enter to reset the safety switch.
A statutory easement may also allow for an owner to use the common property for a particular purpose.
For example, where an owner installing an air conditioner unit wants to put the compressor unit and associated piping on common property. A statutory easement can be created to benefit the lot owner so they can install the unit.
Note: these examples may not apply to your particular situation.
Giving notice to enter
An owner or body corporate must give reasonable written notice before they can enter a lot or common property to carry out work under a statutory easement.
The BCCM Act does not specify:
- how many days' written notice must be given, as reasonable notice will depend on the particular situation
- what a written notice must include.
In an emergency, notice is not required.
As a body corporate
A body corporate can enter a lot to carry out work under the statutory easement if it gives reasonable written notice to the lot owner before entering the lot.
As a lot owner
An owner can enter another lot to carry out work under the statutory easement if they give reasonable written notice to:
- the other lot owner
- the occupier of the other lot if they are not the owner.
An owner can enter the common property to carry out work under the statutory easement if they give reasonable written notice to the body corporate before entering the common property.