Easements and caveats

Easements and caveats that affect what you can do with your land.

Protecting registered interests, resolving right-of-way disputes, and advising on caveat rights and obligations for Gold Coast and Queensland property owners.

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An easement is a right to use someone else’s land for a defined purpose. That sentence does most of the work; the rest is detail about how the right was created, what it permits, who it binds, and what happens when it is disputed.

A caveat is different in kind. It is not a right to use land; it is a claim to an interest in land, lodged on the title register to prevent dealings until that claim is resolved. Lodging a caveat without a genuine interest is a risk. The person who suffers loss because of an improperly lodged caveat can seek compensation.

Queensland’s Torrens system registers both easements and caveats. Registration gives notice to the world and, in the case of easements, determines who is bound. The *Property Law Act 2023* (Qld) significantly reformed easement covenants: both positive and negative obligations in a registered easement now bind successors in title, regardless of when the easement was created.

These are not abstract technical matters. A right-of-way dispute between neighbours can prevent development and reduce land value. An improperly lodged caveat can block a settlement and expose the caveator to a damages claim. Getting the legal position right at the outset is considerably less expensive than correcting it later.

Scope of work

What we help with

Fraser Lawyers acts on easement and caveat matters, including:

Matter: What it usually involves
Easement creation by registered grant: Drafting and lodging easements under the Land Title Act 1994 (Qld)
Equitable easements: Easements arising by implication, necessity or common intention where registration has not occurred
Statutory easements for utilities: Easements in favour of infrastructure authorities and service providers
Right-of-way disputes: Contested access, obstruction of a registered right-of-way, and scope of use disputes
Easement covenant obligations: Advice on positive and negative covenants in registered easements that bind successors under the Property Law Act 2023 (Qld)
Modification or extinguishment of easements: Court applications under the Property Law Act 2023 (Qld) s 181 to vary or extinguish an easement that has become obsolete or contrary to public interest
Caveat lodgement: Protecting a purchaser's, beneficiary's, lender's or family law interest before settlement
Caveat removal: Applying to court or giving lapsing notice to remove a caveat affecting a transaction
Compensation for improper caveat: Recovering loss caused by a caveat lodged without reasonable cause under the Land Title Act 1994 (Qld) s 130
Caveat lapse proceedings: Managing the lapsing notice procedure under the Land Title Act 1994 (Qld) s 126

Easements and caveats both operate on the title register, but they raise quite different legal questions. An easement dispute is usually about the scope or exercise of an existing right, or about whether a right exists at all. A caveat dispute is usually about whether the caveator had a sufficient interest to lodge, and what the consequences are if they did not.

The common thread is urgency. Both can affect the ability to deal with land, either permanently (an easement limiting use) or immediately (a caveat preventing settlement). Neither responds well to being left unaddressed.

Process

What happens after you are charged.

Two distinct legal frameworks apply: one for easements, one for caveats.

Easements. In Queensland’s Torrens system, an easement created by registered grant under the *Land Title Act 1994* (Qld) is the most common and most secure form. It binds the current owner of the burdened lot and all successors in title. It appears on the title register and cannot be ignored.

Easements by prescription (long use) are largely unavailable in Queensland’s Torrens system. The Torrens principle of indefeasibility means that use of land, however long-standing, does not of itself create a registrable interest. Equitable easements may arise in limited circumstances, but they are unregistered interests and are vulnerable to a subsequent registered dealing by a bona fide purchaser for value without notice.

The *Property Law Act 2023* (Qld) introduced a significant reform: both positive and negative covenants in a registered easement now bind successors in title. This applies retrospectively to all easements, not just those created after 1 August 2025. A purchaser inherits not only the benefit or burden of the right of way or similar right, but also any positive obligations attached to it, such as a requirement to maintain a shared driveway or gate.

Caveats. Under the *Land Title Act 1994* (Qld), a caveat may be lodged by a person who claims a legal or equitable interest in land. Common examples include:

a purchaser under a contract for sale (before settlement)
a beneficiary under a trust affecting the land
a lender holding an unregistered mortgage or charge
a party with a family law property interest under the *Family Law Act 1975* (Cth)
a party to a joint venture or partnership affecting land

A claimed interest that is speculative, or that amounts only to a personal obligation rather than an interest in land, will not support a caveat. The consequences of lodging without reasonable cause are significant: under s 130, the caveator must compensate anyone who suffers loss, and exemplary damages may be awarded.

Right-of-way disputes

When a right-of-way becomes contested.

A registered right-of-way easement gives the benefited owner a right to pass over the burdened land for the purpose specified in the instrument. The dispute usually arises not about whether the right exists, but about its scope.

Common disputes include: whether the right extends to vehicles as well as pedestrians; whether the burdened owner can gate or restrict access; whether the benefited owner is using the right for a purpose not contemplated by the original grant; and what maintenance obligations each party carries.

The *Property Law Act 2023* (Qld) adds a layer that was not present under the old law. Both positive and negative covenants in the easement instrument now bind successors. A new owner of the burdened lot who did not negotiate the easement may nevertheless be bound by a positive obligation (such as a requirement to keep the surface in good repair) if it is contained in the registered instrument.

When a right-of-way is obstructed, the benefited owner may seek an injunction requiring the obstruction to be removed, and damages for any loss caused by the obstruction. Early legal action is important: a right-of-way that is obstructed without challenge can create ambiguity about the scope of the right over time.

When the right-of-way has become obsolete, the burdened owner can apply to court under the *Property Law Act 2023* (Qld) s 181 to modify or extinguish it. The court has a broad discretion and will consider whether the easement still serves any practical purpose, and whether extinguishment would cause injury to the benefited owner.

Caveats in practice

Lodging a caveat, and removing one.

A caveat is a blunt instrument. It stops all dealings with the land in question until it is removed, withdrawn, or lapses. It does not guarantee the caveator will succeed in establishing the underlying interest. It buys time.

The lapsing procedure under the *Land Title Act 1994* (Qld) s 126 is the registered proprietor’s mechanism for forcing the issue. Once a lapsing notice is served, the caveator has a limited period to commence court proceedings and notify the Registrar. A caveator who fails to act within time loses the caveat and the protection it provided.

The consequence of losing the race is not just the loss of the caveat. If the underlying interest was real but the proceedings were not commenced in time, the caveator’s position may be very difficult to recover. Registered dealings that occurred while the caveat lapsed may be indefeasible against the caveator.

On the other side, a registered proprietor whose land is the subject of an improperly lodged caveat can apply for its removal and, under s 130, seek compensation for any loss caused. Loss can include a failed settlement, additional finance costs, or a purchaser who withdrew because of the caveat on title.

The compensation claim under s 130 is not negligible. Courts have awarded substantial sums where a caveat with no proper basis blocked a commercial transaction. The presumption under s 130 is that the caveat was lodged without reasonable cause unless the caveator proves otherwise.

Time limits

Deadlines and risks.

In easement disputes, delay in acting on an obstruction can weaken the factual record. If the right has been impeded for a significant period without complaint, the burdened owner may argue that the scope of the right was never as broad as claimed. This is not a formal limitation defence; it is an evidentiary problem.

In caveat matters, the risks are tightly time-bound. Once a lapsing notice is served, the caveator must act. The window is not generous, and the consequences of missing it are severe: the caveat lapses and the registered proprietor can proceed with any dealing.

A purchaser who lodges a caveat on exchange should understand that the caveat does not replace settlement. It protects the equitable interest under the contract pending settlement, but it does not suspend the settlement obligations. If a vendor purports to deal with the property after a caveat is lodged, the caveator’s equitable priority may be protected, but the caveat must be properly maintained to ensure that protection holds.

For easement modification or extinguishment applications under the *Property Law Act 2023* (Qld) s 181, there is no defined limitation period, but court proceedings take time and the longer an obligation has been recognised and acted upon, the harder it is to extinguish.

What we do

How Fraser Lawyers acts in these matters.

Fraser Lawyers advises on the creation, scope, enforcement and extinguishment of easements, and on the lodgement, maintenance, lapsing and removal of caveats.

For easement matters, the firm reviews the registered instrument, identifies the obligations and their scope (including any positive covenant obligations under the reformed *Property Law Act 2023* (Qld) provisions), and advises on the appropriate response to a dispute or obstruction. Where court proceedings are required, the firm prepares the application and manages the matter through to resolution.

For caveat matters, the firm assesses whether a caveatable interest exists before lodging, prepares the caveat instrument, and manages any lapsing notice or court challenge. Where a client needs a caveat removed, the firm advises on the available options and acts promptly given the time-sensitive nature of most caveat disputes.

Blake Fraser acts personally on all easement and caveat matters.

Practical

Documents to bring.

Title search or Certificate of Title Shows registered easements, caveats and encumbrances
Easement instrument The registered document creating the easement, if available
Survey plan Identifies the easement area on the ground
Contract for sale If the caveat relates to a purchase or sale transaction
Any existing caveat documentation Caveat form and caveator's details, if lodged
Lapsing notice If one has been served; urgency is likely
Correspondence with the other party Letters, emails or notices about the easement or caveat
Photographs or diagrams Of the right-of-way area, obstruction or relevant physical features
Finance or mortgage documents If the caveat or easement affects a secured lending transaction
Trust deed or family law orders If the caveatable interest arises from a trust or family law matter

Pathway

The likely path.

Step 1 — Title review and legal advice.

Fraser Lawyers reviews the title register, the easement instrument (if applicable) and any correspondence to identify the legal position. For caveat matters, the firm assesses whether a caveatable interest exists and what form of caveat is appropriate. This step determines the strategy.

Step 2 — Demand or protective action.

For easement disputes, a letter identifying the registered right, the breach and the required remedy is the usual first step. For caveat lodgement, the firm prepares the caveat instrument and lodges it promptly. For caveat removal, the firm identifies the fastest available mechanism: voluntary withdrawal, lapsing notice, or court application.

Step 3 — Lapsing notice procedure (if applicable).

Where a lapsing notice has been served, the firm immediately assesses whether the caveatable interest is sufficient to justify court proceedings. If it is, proceedings are commenced within the required period and the Registrar is notified. Delay is not an option at this stage.

Step 4 — Court proceedings (if required).

Where the dispute cannot be resolved by correspondence or the lapsing notice procedure, the firm prepares court proceedings. This may include an application for an injunction preventing an obstruction, an application for easement extinguishment under the *Property Law Act 2023* (Qld) s 181, or a compensation claim under s 130 for an improperly lodged caveat.

Step 5 — Registration and finalisation.

Where the resolution involves a new or modified easement, the firm prepares the instrument and lodges it for registration. For resolved caveat matters, the withdrawal or court order is lodged with the Titles Office to remove the caveat from the register and allow the dealing to proceed.

Frequently asked

Questions we hear often.

Plain-English answers to the questions clients tend to ask. If your question is not here, call us.

Get in touch

I have a right of way over my neighbour's land. They have blocked it. What are my options?

If the right-of-way is registered as an easement under the *Land Title Act 1994* (Qld), the benefited owner has a right to use it free from obstruction. The burdened owner cannot unilaterally revoke or obstruct a registered easement. You can seek an injunction requiring removal of the obstruction and, if you have suffered loss, damages. Legal advice at the first sign of obstruction is worthwhile; the evidentiary record is freshest at that point.

What interest do I need to lodge a caveat?

Under the *Land Title Act 1994* (Qld), a caveator must have a legal or equitable interest in the land. Common qualifying interests include: a purchaser’s equitable interest under a signed contract; a beneficiary’s interest under a trust; an unregistered mortgagee’s interest; a family law property interest. A contractual promise that does not create an interest in the land itself (for example, a mere personal obligation to pay money) will not support a caveat. Lodging a caveat without a sufficient interest exposes the caveator to a compensation claim under s 130.

I have received a lapsing notice. What do I do?

Act immediately. A lapsing notice under the *Land Title Act 1994* (Qld) s 126 triggers a limited period within which the caveator must commence court proceedings to establish the claimed interest and notify the Registrar. The period is short and cannot be extended by agreement. If you receive a lapsing notice, contact a lawyer on the same day. Missing the deadline means the caveat lapses and the registered proprietor can deal freely with the land.

Can I get compensation if someone lodged a caveat on my land without proper grounds?

Yes. Under the *Land Title Act 1994* (Qld) s 130, a caveator who lodges or continues a caveat without reasonable cause must compensate anyone who suffers loss as a result. A court may also award exemplary damages. Importantly, under s 130 there is a presumption that the caveat was lodged without reasonable cause, which the caveator must rebut. Loss may include a failed settlement, additional finance costs, or a purchaser who withdrew because of the caveat on title.

How do positive easement obligations work after the Property Law Act 2023 (Qld)?

Before the *Property Law Act 2023* (Qld), only negative obligations in easement instruments generally bound successors in title. Positive obligations (such as an obligation to maintain a shared driveway or gate) were largely personal to the original parties. Under the reforms, both positive and negative covenants in a registered easement now bind successors in title. Critically, this applies retrospectively to all easements regardless of when they were created. If you are purchasing land with registered easements, you may inherit obligations that were not apparent on a basic title search.

Can an easement be removed if it is no longer being used?

Under the *Property Law Act 2023* (Qld) s 181, a court can modify or extinguish an easement on a number of grounds, including that the easement has become obsolete, that it impedes the reasonable use of the burdened land without practical benefit to the benefited land, or that its extinguishment would not injure the benefited owner. Non-use alone is not sufficient, but it is a relevant factor. The burdened owner must make a court application; registration does not lapse through non-use in Queensland’s Torrens system.

I sold my property but the buyer's solicitor says there is a caveat on title I did not know about. What happens?

A caveat on title can prevent registration of the transfer at settlement. The vendor’s obligation is to convey a clear title. The vendor’s solicitor should take immediate steps to investigate the caveat, identify whether the caveator has a genuine interest, and seek withdrawal or removal before the settlement date. If the caveator refuses to withdraw and has no proper interest, a court application can be made on an urgent basis. Most settlement-linked caveat disputes are resolved by negotiation before they reach a court hearing.

Talk to Fraser Lawyers about your easement or caveat matter.

Caveat matters in particular move quickly. A short enquiry is usually enough to identify the urgency and the appropriate next step. Fraser Lawyers is based at 86 Bundall Road, Bundall, and acts for clients across the Gold Coast and throughout Queensland.

Call (07) 5554 6116 Send a short enquiry