Understanding Access Easement Agreements

In the realm of home construction and property law, understanding legal agreements and restrictions is essential. One such restriction, relevant mainly in Hong Kong, is the access easement. This easement provides access to neighboring properties or common areas and can have a major impact on planning and execution when building or remodeling a home. At LTHOME, we know every obstacle can be overcome as long as you are well-informed and prepared.

An comprehensive access easement agreement gives a neighbor the right to cross or use land for purposes stated in the agreement, such as maintenance or repair of facilities or services. The easement would likely be registered with the Lands Registry and a caution would be lodged against the respective title deed. The first easement would have priority over the subsequent easement. An easement attaches to the land until it’s extinguished by the easement holder, the owner of the servient tenement, or set expiry date. It may also apply when there’s a proper common way, given that consent has been obtained to use the path on the property for a purpose clearly defined under the easement agreement. An easement agreement authorizes the easement holder to use the land for the intended purpose with some rights and conditions.

In a well-planned easement or agreement, the following may be defined: A proper easement will protect owners from issues with the owner having the easement. For example, if the owner of land has the right to renovate the property, it’s clear that performed renovations fall under the rules. As such, any damages caused during the renovation must be compensated as mentioned in the easement. Similar rules would apply if nearby property holders collude and block the easement or cross over to your land. Should this happen, the affected landholder is entitled to seek an injunction to stop the trespass. With the right strategy and know-how, disputes may be prevented.

While building or renovating a home, you may encounter many bureaucratic hurdles from government officers and landholders. If you reside in a densely-populated city like Hong Kong, issues might arise more frequently because of the closeness of buildings. For instance, if an urban planner overlooks a defect in the land title documents, a developer may use a common land space neglecting that an easement is located within this space. As such, construction begins on the common path or space with minimal notice. Over time, neighbors may complain about blocking access to their easement and warn the developer. This could slow down construction and lead to serious construction delays with increasing costs.

If you plan to build or remodel your home/dwelling, it pays to budget and consult a local architect and property lawyer who can help you establish an easement. Honesty is the best policy: As a developer or homeowner, it is always best to inform the neighbor before or during the application of an easement. In LTHOME’s latest property development, the construction and expert consultants provided valuable information that helped the owners figure out an easement issue and comply with the law.

In this example, an existing easement had lapsed 118 years ago. The previous owner neglected to apply for an easement and raised concerns when the builder wanted to construct a driveway across the neighbour’s land. To resolve the issue, the builder consulted with LTHOME and we assisted in preparing the application form and required documentation. Without our support, the builder may not have gained approval. In conclusion, consulting the proper professionals prior to entering an easement agreement is the right course of action.