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Subdivisions and Easements

Subdivisions and easements. Mildwaters Lawyers Kadina South Australia. Image: Trevu House Re-subdivision Plan 1982 by Gawler History via Flickr.

The team at Mildwaters Lawyers has put together this summary of subdivisions and easements to help readers understand what is involved with this area of law.

The process of subdividing land

When you are considering subdividing your land, there will be many issues to consider, and this is where our Registered Conveyancer will be able to help you plan your attack in an informed way.

Step 1 – Draw a plan and talk to your local Council

Once you have drawn a rough plan of your proposed subdivision, make some preliminary enquiries with your local Council to find out whether subdividing your land is an option for you, if there any restrictions on subdividing your land such as a minimum allotment size that you must create and whether your plan complies with their zoning regulations.

Step 2 – Appoint a Surveyor

Your next step is to choose and appoint a Surveyor. They will will be able to provide you with details about local and state government requirements for subdivisions, the costs involved and an approximate time frame for your proposed subdivision.  They can also talk to you about the types of subdivision available which include a Torrens Title subdivision or a Community Title subdivision.

Torrens Title subdivision is where you divide your parcel of land into two or more separate Torrens Titles, whereas Community subdivision is where you divide your land into two or more separate Community Titles. In this latter approach, some common land is shared by the owners via a community corporation.

Your Surveyor will draft your plan for you and apply for the required consents.  Once your final plan has been prepared and approved and you have paid all of the required fees, your Surveyor will attend to lodging the plan with the Lands Titles Office.

Step 3 – Appoint a Conveyancer

Although we have listed this step as the third one in the process, we do suggest that you appoint your Conveyancer at about the same time as appointing your Surveyor.  That way, your Conveyancer can provide you with information about their role in the process of subdivision and the costs associated with this role, so that you have a full picture of these important facts before you get started.  It also means that your Conveyancer can prepare their documents and have them ready to lodge as soon as the Surveyor’s plan is approved, so that your subdivision can be finalised at the earliest opportunity.

The role of your Conveyancer in this process is to prepare the documents that are filed with the Lands Titles Office that refer to the plan prepared by your Surveyor and which provide instructions to the Lands Titles Office about various things including how the new titles are to issue and how the encumbrances on the existing titles are to be affected.  These documents also include consents that we obtain on your behalf and that may be needed from a third party such as your bank.

Step 4 – Reap the benefits of subdividing your land

Once your Conveyancer has prepared the necessary documents, you have signed them and provided your Conveyancer with the funds payable for the fees involved, the documents can be lodged with the Lands Titles Office, after which your new titles will issue.

Once the new titles have issued you are free to deal with them as you wish.  This might include building on the newly subdivided land and selling the house and land for a profit or just selling off the part of the subdivided land that you do not wish to retain.  Either way, you will be able to enjoy the financial reward of your efforts.

 

What are easements?

Subdivision projects often involve the establishment of one or more easements.

Put simply, an easement is an “interest” in land that allows one person to make use of land owned by another person for a specific reason.  It is considered a “positive benefit” to the person who gains access to the easement and a “limitation on the ownership” of the person whose land is subject to the easement.

One of the simplest examples is the common easement on property allowing sewer lines to be laid. Such easements require consent to be obtained before any building is erected over the portion of land that over which the easement exists, so that authorities can maintain access to the sewer lines as needed.

Other examples of easements include:

  • where the owner of one title secures the right to drive up the driveway on the land of the adjacent owner
  • where the owner of one title secures the right to have a gutter that invades the boundary of the land of the adjacent owner.

Although easements are often part of a subdivision of land, they can also be negotiated and agreed upon and subsequently registered on a title without any other division of land occurring.

If you have any questions about any subdivisions or easements, contact us today at Mildwaters Lawyers Kadina.

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