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Easements and Covenants: Removing Them Before Selling

Old easements and restrictive covenants registered against your title can quietly cost you tens of thousands at sale. Here is how to identify what you are dealing with and whether removing it is worth the effort.

Many inner east properties carry registered restrictions on title that the current owner is barely aware of, often inherited from earlier subdivisions, neighbour arrangements, or utility installations from decades ago. Buyers, their solicitors, and their finance providers see these restrictions clearly because they appear on a title search ordered as part of every property purchase.

Some restrictions have no practical impact and are accepted without comment. Others affect what can be built, how the property can be used, or who else has rights to access it. The latter category quietly costs sellers price, sometimes by significant amounts, and the cost compounds because the disadvantage carries forward to every future sale of the property unless dealt with.

Easement, covenant, encumbrance: what is the difference

The terms are often used loosely. The legal distinctions matter because the removal process for each is different.

Easement. A registered right granted by the property owner allowing another party to use a defined part of the land for a defined purpose. Examples: a sewer easement allowing council to access a pipe running through your back yard, a right-of-way easement allowing a neighbour to drive across your driveway to access their land, a drainage easement to allow stormwater flow.

Restrictive covenant. A registered restriction limiting how the land can be used or what can be built on it. Examples: a covenant requiring single dwelling use only, a covenant restricting maximum building height, a covenant prohibiting certain materials or colours.

Encumbrance. A broader term covering any registered interest that affects the property, including mortgages, caveats, statutory charges (such as council rates), as well as easements and covenants.

Of these, easements and covenants are the ones owners can sometimes choose to remove. Mortgages and statutory charges are discharged through the standard sale process and rarely require pre-listing action.

How to find what is on your title

The starting point is a current title search. Your conveyancer or solicitor can order one in minutes, or you can request one directly from Titles Queensland. The search returns the registered owner, the property description (including lot and plan), and a list of registered interests with the document numbers and a brief description of each.

For each interest listed, request a copy of the underlying registered document. The title search shows that an easement exists. The dealing document tells you who benefits from it, what area it covers, and what rights it grants. A two-line title entry can refer to a 30-page registered document with detailed conditions.

Read each document carefully or have your solicitor summarise them. Pay particular attention to any reference to plans, sketches, or schedules that define the area or the obligations.

Easements that materially affect price

Not every easement matters at sale. Some of the most common high-impact ones in the inner east include:

Right-of-way easements over a driveway. A neighbour with a right to drive across your land to access their own property reduces buyer interest, particularly for owner-occupiers. The price impact is real and visible in comparable sales evidence.

Sewer or water easements that restrict building. A registered easement over a council main typically prohibits building on or close to the easement line. If the easement runs through the most logical extension or shed location, the development potential of the property is constrained.

Drainage easements. An easement allowing stormwater to flow across or under your land. The constraint depends on where the easement runs and what it allows.

Party wall or party fence agreements. Older inner east homes sometimes have registered arrangements about boundary walls. These rarely cause major issues but are worth understanding.

Encroachment agreements. Registered acknowledgements that a structure (often a fence or eave) sits over the legal boundary. These document the problem rather than fixing it, and a buyer's solicitor will flag them.

When removal is worth pursuing

Removal makes sense when the restriction has a clear price impact and the cost of removing it is materially less than the price impact. Practical examples:

A right-of-way easement that has not been used in 15 years because the benefiting property has its own street access. The neighbour may agree to surrender the easement for a modest fee or even at no cost. The price impact removed at sale could be five or six figures.

A council easement over a redundant or relocated service. Council can sometimes consent to surrender or release the easement, particularly where the underlying service no longer exists.

A restrictive covenant from a 1980s subdivision requiring a specific external colour scheme that no neighbouring property has actually complied with for 20 years. Variation or removal is sometimes possible by agreement with the original beneficiaries (the developer or the relevant council).

Removal does not make sense when the cost approaches or exceeds the likely price impact, when the benefiting party is unlikely to agree, or when the timeline to remove is longer than your sales timeline.

The removal process in outline

The exact process depends on what type of restriction you are removing, but the general steps are:

1. Identify the beneficiary of the restriction (the party with the right being removed).

2. Approach the beneficiary and seek their consent to surrender the right. This is usually done formally through your solicitor.

3. Negotiate any compensation, conditions, or replacement arrangements (for example, providing alternative access or relocating a service).

4. Engage a surveyor to prepare any required plans showing the area being released.

5. Have your solicitor prepare and lodge the surrender or release document at Titles Queensland.

6. After registration, order a fresh title search to confirm the restriction has been removed.

If consent cannot be obtained, the alternative is application to the court for an order modifying or extinguishing the restriction. This is a more involved process, takes longer, and costs more in legal fees. It is sensible only where the price impact is significant enough to justify the investment.

If you cannot remove it: managing disclosure and price expectation

Where removal is not feasible, the next best move is to address the issue head-on in your campaign. The buyer is going to find out from the title search regardless. Hiding it in the contract pack and hoping the buyer's solicitor misses it is not a strategy.

Provide clear, plain-English explanations of what each restriction actually means in practice. A short paragraph in the marketing summary, supported by the actual title documents, is far more reassuring to buyers than the legal language alone. Buyers are usually fine with restrictions they understand. They walk away from restrictions that look complicated or unclear.

The price expectation should also reflect the restriction. A property that comparable evidence shows is worth $1.6 million but carries an easement reducing the practical value to $1.5 million should be priced at $1.5 million from day one. Pricing at $1.6 million and trying to negotiate down through the campaign just produces a stale listing.

When to start this work

Removal of a registered restriction takes time. Negotiation with the beneficiary, surveyor work, solicitor preparation, and the registration process at Titles Queensland together usually run two to four months for a straightforward case. For court applications, six to twelve months is more realistic.

If your timeline to listing is shorter than that, the practical move is to prepare the disclosure properly and price for the restriction. If your timeline is longer, starting the removal process early can deliver a meaningful uplift in price by the time you go to market.