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Implied Easements Not on Title Melbourne First Home Buyers Should Check

Published by Pearson Chambers Conveyancing on
Implied Easements Not on Title Melbourne First Home Buyers Should Check

A neighbour’s casual comment at an inspection can change the way you read a property. ‘We’ve always used that driveway’, or ‘the stormwater runs through there’, is not something a first home buyer should brush off.

The short answer: An easement can affect a Melbourne property even if it is not obvious on the certificate of title. Section 42(2)(d) of the Transfer of Land Act 1958 (Vic) says registered land is subject to easements ‘howsoever acquired’, and section 32C of the Sale of Land Act 1962 (Vic) requires a vendor statement to describe registered and unregistered easements, covenants and similar restrictions affecting the land. Some claims still need evidence, but off-title easements are real enough that first home buyers should check before signing.

Can an easement bind you if it is not on the title?

Yes, an easement may bind a buyer even when it is not neatly listed on the title search. That does not mean every informal neighbour arrangement becomes a legal right, but it does mean a clean-looking title is not the end of the enquiry.

A standard title review will usually pick up registered easements on the certificate of title. These are the straightforward ones: drainage easements, sewerage easements, service easements, carriageways and rights of way shown on the title or plan.

The harder cases are implied, statutory or long-use rights. They may sit in the history of the subdivision, the physical layout of the land, or the way neighbours have used the property for many years. For a wider introduction to the topic, see how easements and covenants affect a property in Victoria.

What is an implied easement in Victoria?

An implied easement is a legal right over land that arises without a fresh, signed and registered easement instrument. It is usually created by law because the land could not sensibly be used without that right, or because the original subdivision or transfer points to that result.

Common categories include:

  1. Easements of necessity: often relevant where a rear lot would otherwise have no lawful access to the road.
  2. Easements implied from the circumstances of a transfer: for example, where land is split and an existing, obvious use needs to continue.
  3. Easements by common intention: where the parties’ arrangement only makes sense if a particular access, support or service right exists.
  4. Statutory implied easements: section 12(2) of the Subdivision Act 1988 (Vic) can imply easements and rights for services, support, rights of way, light and overhanging eaves in certain subdivision settings, where necessary for reasonable use and enjoyment.
  5. Prescriptive easement claims: long, open use, often discussed around 20 years, may raise a claim. These claims can be legally complex, so buyers should treat them as a risk to investigate, not as something to diagnose from a driveway chat.

Why does section 42(2)(d) matter for first home buyers?

Section 42(2)(d) matters because it is an exception to the usual comfort buyers take from registered title. It preserves easements ‘howsoever acquired’ even where they are not specially recorded as encumbrances on the relevant folio.

In plain English, registration does not automatically wipe away every easement risk. If an easement already exists and is legally enforceable, the new registered owner may take the property subject to that burden.

That is why implied easements feel so unfair to buyers. You may have done the title search, read the contract, paid the deposit and acted in good faith. The question is still whether the right exists at law, not whether you personally knew about it on auction day.

Which Melbourne properties raise off-title easement risks?

Older, tighter and oddly configured Melbourne properties raise the most risk. The more the property relies on shared access, old drains, rear lanes or boundary projections, the more carefully the contract pack should be read.

Watch these examples:

  • Rear lots and battleaxe blocks: access rights are central when a home sits behind another home. If you are buying a battleaxe block in Melbourne, check whether access is properly protected, not just physically available.
  • Shared driveways: two older homes in suburbs like Hawthorn, Camberwell or Coburg may have used one driveway for decades, even if the documents are thin.
  • Inner-suburban terraces: stormwater, sewerage, eaves and old party structures can cross title lines in Carlton, Fitzroy, Richmond or South Melbourne.
  • Overhanging eaves or projections: these can be part easement issue, part boundary issue. See boundary encroachment when buying property in Melbourne if the physical structure does not match the legal boundary.
  • Older plans and paper records: some older subdivisions have details that are harder to read than a modern digital plan.

We recently reviewed a contract for an older inner-north terrace where the title looked fairly plain, but the inspection photos showed drainage pits and an overhanging gutter hard against the neighbour’s wall. That did not prove an implied easement by itself, but it was enough for us to slow the buyer down and ask better questions before they committed.

How can a conveyancer spot implied easement clues before you sign?

A conveyancer cannot magically see every off-title easement, but a careful Section 32 review can spot the clues. The aim is to identify risk early, while the buyer still has options.

A practical review should include:

  1. Compare the title and plan of subdivision. Check whether the plan shows easements, service routes, common property or access strips that are not obvious from the title search alone.
  2. Read the Section 32 statement closely. Section 32C requires disclosure of registered and unregistered easements, covenants and similar restrictions affecting the land.
  3. Check whether the wording is vague. Phrases like ‘not known to the vendor’ or ‘as shown on title’ may need follow-up if the site tells a different story.
  4. Look at the property itself. Driveways, gates into neighbouring land, worn paths, inspection pits, drains, power boxes and overhanging structures can all be warning signs.
  5. Order a survey where the land does not match the paperwork. For higher-risk sites, title re-establishment surveys for Melbourne property buyers can help confirm legal boundaries and physical features before settlement.
  6. Ask direct questions in writing. If the neighbour has mentioned access or services, your conveyancer can raise that with the vendor’s representative before you sign or before the contract becomes unconditional.

Can you cancel the contract if an implied easement is found before settlement?

Possibly, but it depends on the documents, timing and seriousness of the non-disclosure. Section 32K of the Sale of Land Act 1962 (Vic) may give a buyer a right to rescind before accepting title and possession if the vendor supplied false information, failed to supply required information, or failed to provide a compliant Section 32 statement before signing.

That is not the same as saying every implied easement lets you walk away. The buyer usually needs to look at:

  • whether the easement or restriction affects the land;
  • whether it was required to be disclosed;
  • what the vendor knew or could properly say;
  • whether the Section 32 statement was false, incomplete or misleading;
  • whether settlement has occurred;
  • whether the issue changes value, access, use or future building plans.

A buyer should not send a rescission notice without advice. The wording, timing and evidence matter.

What if you find the problem after settlement?

After settlement, your options are usually harder and more expensive. If an easement exists and binds the land, the buyer may need to live with it, negotiate with the neighbour, or look at a formal legal pathway.

The practical options often include:

  1. Confirm the facts. Get the title, plan, survey material and any historical documents reviewed.
  2. Work out whether the right is actually enforceable. A neighbour saying ‘we have always done it’ is evidence to test, not the final answer.
  3. Negotiate if the easement is outdated. Some old access or drainage arrangements can be released, varied or documented by agreement.
  4. Consider a claim against the vendor. If required information was not disclosed and loss has been suffered, the buyer may need advice on remedies.
  5. Avoid self-help. Blocking a driveway, cutting a pipe, removing a gate or building over a claimed right can make a dispute much worse.

Five checks first home buyers should do before signing

Before signing for an older Melbourne home, run these checks:

  1. Stand on the land with the plan open. Match driveways, fences, drains and side access to what the plan shows.
  2. Ask whether anyone else uses part of the property. That includes neighbours, owners corporation members, councils and service authorities.
  3. Look for service clues. Inspection pits, grates, pipes, meters and poles may explain why a right exists.
  4. Be careful with auction contracts. Auction buyers usually need all checks done before bidding.
  5. Get the Section 32 reviewed. A complimentary contract review can flag whether the paperwork and the property tell the same story.

Frequently asked questions

What is an implied easement in Victoria?

An implied easement in Victoria is a right over land that arises by law rather than by a new registered easement instrument. It may arise from necessity, the circumstances of a subdivision or transfer, common intention, statute, or a long-use claim. If enforceable, it may affect a buyer even if it is not clearly listed on the certificate of title.

Do unregistered easements bind Melbourne property buyers?

Unregistered easements can bind Melbourne property buyers if the easement exists and is legally enforceable. Section 42(2)(d) of the Transfer of Land Act 1958 (Vic) preserves easements ‘howsoever acquired’ as an exception to registered title. Buyers should check the Section 32 statement, plan and physical land before signing.

What does section 32C require a vendor to disclose?

Section 32C of the Sale of Land Act 1962 (Vic) requires the Section 32 statement to include a description of any easement, covenant or similar restriction affecting the land, whether registered or unregistered, plus details of any existing failure to comply with it. If the statement is false or incomplete, section 32K may be relevant before settlement.

Does 20 years of driveway use always create an easement?

No, 20 years of driveway use does not automatically create an easement in every case. A prescriptive easement claim usually needs open, continuous use without force, secrecy or permission, and the law in Torrens title settings can be complex. A buyer should get advice before accepting or rejecting the claim.

Can a survey find every implied easement?

No, a survey cannot find every implied easement. A title re-establishment survey can show boundaries, encroachments and physical features that suggest access or service rights, but it will not uncover every old conversation, letter or neighbour arrangement. It works best with a careful Section 32 review and targeted vendor questions.

About the Pearson Chambers Conveyancing team

Pearson Chambers Conveyancing is a Melbourne-based conveyancing firm working with first home buyers across Victoria. Our team reviews contracts, Section 32 vendor statements, titles, plans of subdivision and practical property risks before buyers sign. Implied and off-title easement issues are the sort of quiet problems we look for during a pre-purchase review.

Sources we consulted

Talk to Pearson Chambers Conveyancing before you sign

If a driveway, drain, eave, side path or neighbour comment has made you question the contract, get it checked before you commit. Pearson Chambers Conveyancing offers a complimentary Section 32 contract review for Melbourne first home buyers.

Email: contact@pearsonchambers.com.au

General information only, current as at the date of publication. Victorian conveyancing rules and legislation change frequently. Please contact the Pearson Chambers Conveyancing team for advice on your specific contract.

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