# Easements and encumbrances: what a Queensland contract leaves on title
A Queensland home is sold free of encumbrances, with exceptions. Which interests stay after settlement, which the seller must clear, and what a buyer can do about a surprise.
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A title search for an ordinary Queensland house often runs to a single page, and somewhere on it there is usually a line that has nothing to do with the owner or the bank. It might read as an easement in favour of the council, or a covenant, or a number that means nothing without the document behind it. These are interests other people hold in the land. Some of them will still be there long after the sale. Others must be gone by settlement day.
The standard contract sorts them with one sentence and a set of definitions. The sentence says the property is sold free of all encumbrances, with two exceptions. The definitions decide what falls inside the exceptions. This guide explains how that sorting works under the Contract for the Sale and Purchase of Residential Real Estate, the first edition of which has been published by the Real Estate Institute of Queensland and the Queensland Law Society for use since 1 August 2025. It covers what an encumbrance is, what an easement does, which interests the seller must remove, and where a buyer stands if something turns up that the contract did not mention. It is general information only.
2 exceptionsto a sale free of encumbrances: title encumbrances and tenancies
3 kindsof encumbrance the contract names
0requisitions on title a buyer may deliver
REIQ and Queensland Law Society residential contract, first edition, clause 1 definitions and clauses 7.2 and 7.3.
## The promise in clause 7.2
Clause 7.2 of the contract is one line long: the property is sold free of all encumbrances other than the title encumbrances and tenancies.
Everything turns on the three defined terms in it. "Encumbrances" is the wide category of interests that burden the property. "Title encumbrances" is the subset that the buyer agrees to take. "Tenancies" are leases to tenants in occupation, which the contract treats separately and which are outside this guide.
The structure is a general rule with a list of exceptions. If an interest is an encumbrance and is not a title encumbrance or a tenancy, the seller has promised it will not affect the property when the buyer becomes the owner. If it is a title encumbrance, the buyer has agreed to buy subject to it.
## What counts as an encumbrance
The contract's definition of encumbrances includes three things: registered encumbrances, security interests and unregistered encumbrances.
Registered encumbrances are the interests recorded on the title at the land registry. A mortgage is the most familiar. Easements, covenants, caveats, registered leases and statutory charges are others.
Security interests are defined as all security interests registered on the Personal Property Securities Register over included chattels and improvements. They are interests in things, not in the land: a financier's interest in a solar system or an air conditioner installed under a payment plan, for instance.
Unregistered encumbrances are given the meaning they have in the Property Law Regulation 2024. The Queensland Government's summary of the seller disclosure scheme lists unregistered encumbrances among the matters covered in the title part of the disclosure statement, alongside the title search and registered encumbrances. They are interests that affect the land without appearing on the search, such as an unregistered lease or an informal right of way.
Alongside these the regulation recognises statutory encumbrances. The Queensland Law Society's answers to practitioners' questions on the disclosure forms, published in its journal Proctor when the scheme began, explain that statutory encumbrances are defined in section 8(2) of the regulation as statutory charges arising from unpaid money owed to the Commonwealth, the State or a local government, statutory rights to maintain infrastructure on the lot, and statutory rights to access land to repair or maintain infrastructure. Unpaid rates that have become a charge on the land are an example of the first. A sewer main that an authority is entitled by legislation to keep in a backyard, without any easement on the title, is an example of the second.
## Title encumbrances: what the buyer agrees to keep
Against that wide category, the contract defines title encumbrances in two limbs. The first is the registered interests and encumbrances listed on the title search, other than any mortgage, caveat or charge. The second is the unregistered encumbrances disclosed in the seller disclosure statement.
The first limb does a great deal of quiet work. Every registered easement and covenant shown on the title search is something the buyer takes. Mortgages, caveats and charges are carved out, so they remain the seller's problem. The reference schedule reinforces the point with a heading for matters affecting the property and a statement that the encumbrances listed will remain after settlement under clause 7.2. The same part of the schedule records whether a seller disclosure statement was or was not given to the buyer.
The second limb links the contract to the disclosure scheme. An unregistered interest becomes a title encumbrance, and so binds the buyer as between the parties, if it was disclosed in the statement the seller gave before signing. An unregistered interest that was not disclosed stays on the seller's side of the line.
What happens to each interest at settlement
Interest
Typical example
After settlement
Registered easement or covenant on the title search
Drainage easement in favour of the council
Stays. It is a title encumbrance.
Mortgage
The seller's home loan
Must be released by the seller.
Caveat or charge
A caveat lodged by a creditor
Must be removed by the seller.
Unregistered encumbrance disclosed before signing
An informal right of way described in the statement
Stays. It is a title encumbrance.
Security interest over a fixture or included chattel
Finance over a solar system
Must be released by the seller.
REIQ and Queensland Law Society residential contract, first edition, definitions of Encumbrances and Title Encumbrances, and clauses 5.5 and 7.2.
## What an easement is
Of all the interests that stay, easements are the most common and the least understood. Titles Queensland's Land Title Practice Manual, in the part on easements updated on 28 April 2026, describes an easement as a right annexed to land to use other land in a particular manner. It may also restrict how the owner of the burdened land uses it.
An ordinary easement involves two parcels. The land that has the benefit is the benefited lot, traditionally called the dominant tenement. The land that carries the burden is the burdened lot, or servient tenement. A shared driveway over a neighbour's block is the textbook case: the rear block is benefited, the front block is burdened.
The second kind has no benefited land at all. An easement in gross burdens a lot for the benefit of a body, not of a neighbouring property. The manual says such easements are held by public utility providers, a term that covers the State, the Commonwealth, local governments and persons authorised by law to provide a public utility service. The stormwater pipe along a back fence and the electricity line across a rural block are usually protected this way.
The manual lists the purposes easements commonly serve: access, support, shared walls, drainage, sewerage, water supply, electricity, light and air, and encroachment. It notes that vague purposes, such as protecting a view, are not acceptable.
The feature that matters most to a buyer is permanence. The manual states that the benefit and the burden of an easement run with the land, binding successive owners unless the easement is surrendered or extinguished. It mentions merger and a court order under section 181 of the Property Law Act 2023 as ways an easement can come to an end, and identifies sections 82 to 87 of the Land Title Act 1994 as the provisions governing how easements are created and registered. A buyer does not agree to an easement in any personal sense. The easement is part of what the land is.
Worth knowing
An easement on the title search stays with the land
Under the standard contract a registered easement shown on the title search is a title encumbrance, and the buyer takes the property subject to it. The search shows only that it exists. The registered document says what it allows.
## Reading the document behind the line
A title search identifies an easement by a dealing number and, usually, a short description. It does not reproduce the terms. Those are in the registered instrument and the survey plan that shows where the easement runs.
The terms can differ a great deal. One drainage easement may simply allow a pipe to remain underground. Another may forbid any structure within its boundaries, which decides whether a pool, a shed or an extension can go where the buyer had imagined. A right of way may or may not say who pays to maintain the driveway.
Since 1 August 2025 the seller has had to give the buyer a title search and a survey plan with the disclosure statement before signing, as the Queensland Government's summary of the scheme sets out. That means a buyer sees the list of registered interests before committing. Whether to obtain and read the documents themselves before signing, or to make the contract conditional on doing so, is a decision for the buyer and their solicitor or conveyancer. For a property where building plans depend on the answer, it is seldom wasted effort.
## What the seller must clear
For the interests on the seller's side of the line, the contract provides the mechanism. Among the documents the seller must deliver at settlement under clause 5.5 is any instrument necessary to release any encumbrance over the property. Clause 5.5(1) is an essential term for the seller, so failing to deliver is a default that brings the remedies in clause 9 into play.
In the usual sale this is routine. The seller's lender releases its mortgage as part of the settlement and is paid from the proceeds. A caveat needs more attention, because it is lodged by someone else and that person has to withdraw it or be made to. A seller who discovers a caveat on the title when the search is ordered for the disclosure statement has time to deal with it. A seller who discovers it in settlement week may not.
Security interests over fixtures and chattels are cleared the same way: the financier is paid out or gives a release. In clause 7.11 the seller authorises the buyer to inspect records held by any authority relating to the property, including security interests on the Personal Property Securities Register, so the buyer's side can check.
## Pipes, access and the gaps easements are meant to fill
Some of the most practical protections in the contract concern easements that ought to exist and do not. They sit in clause 7.7, which lists circumstances in which the buyer may terminate by notice before settlement if they applied at the contract date.
Two of them are about the physical connections every house depends on. Under clause 7.7(1)(c), the buyer may terminate if access to the lot passes unlawfully through other land. Under clause 7.7(1)(e), the buyer may terminate if any services to the lot which pass through other land are not protected by a registered easement. The contract defines services as infrastructure for the provision of services including water, gas, electricity, telecommunications, sewerage or drainage.
The reasoning is the reverse of the usual worry. A buyer normally asks what rights others have over the land being bought. These paragraphs ask what rights the land being bought has over its neighbours. A house whose only driveway crosses the corner of the block next door by long habit, with nothing registered, has a problem that will outlast the friendly neighbour.
Clause 7.5 deals with related discoveries. The buyer may survey the lot, and if that reveals an error in the boundaries, an encroachment or a material mistake in the description of the property, the buyer may terminate before settlement. For an immaterial error, or a material one the buyer elects to accept, the only remedy is compensation, claimed in writing on or before settlement.
The clause closes with an important consequence of doing nothing. Under clause 7.7(2), a buyer who settles is treated as having accepted the property subject to all of the matters listed in clause 7.7(1). The rights in that clause are rights to act before settlement, and they end with it.
## No requisitions, and what replaced them
Clause 7.3 is the shortest clause in the section: the buyer may not deliver any requisitions or enquiries on title. Requisitions were a formal list of questions a buyer's solicitor once sent to the seller's solicitor about the state of the title, which the seller had to answer. The standard contract dispenses with them.
In their place are the mechanisms already described: the seller's promise in clause 7.2, the seller's warranties, the buyer's rights in clauses 7.5 and 7.7, and, since 2025, the disclosure statement. Clause 7.1 adds that the lot is sold subject to any reservations or conditions on the title or the original deed of grant, which are matters of the Crown's original grant of the land and not of anything the seller has done.
## How disclosure changes the remedies
The first edition of the contract was written around the disclosure scheme, and clause 7.8 is where the two meet. It provides that clauses 7.4(1), 7.4(2), 7.5, 7.6(1) and 7.7 do not apply to the extent that any relevant fact or circumstance has been disclosed by the seller to the buyer in the contract or in the seller disclosure statement.
The effect for encumbrances is direct. A seller who discloses before signing that the sewer line crosses the neighbour's yard without an easement has taken that matter out of clause 7.7. The buyer signed knowing it and cannot later terminate on that ground. Disclosure works here as a shield for the seller as much as a source of information for the buyer.
Failure to disclose has its own statutory consequence. The Queensland Government's summary says a buyer may terminate if the seller did not provide the disclosure documents, or supplied inaccurate or incomplete information. In the second case the buyer has to show that the matter was material, that the buyer was unaware of it at signing and that the buyer would not have signed had the truth been known. An undisclosed unregistered encumbrance that limits what can be done with the land is the kind of matter that test is aimed at.
For statutory encumbrances, the Law Society's guidance tells practitioners that where a client cannot answer the question, the usual authority and court searches have to be undertaken to identify charges such as land tax or rates, and that searches of the relevant authorities are needed for infrastructure. The required details include a description of the encumbrance and, where applicable, a plan showing where the infrastructure is. Sellers, in other words, are expected to find out.
## If something turns up after signing
Suppose a buyer's search before settlement shows an interest that is neither on the title search given with the disclosure statement nor mentioned in the statement or the contract. The analysis follows the definitions.
Working out where an interest falls
Is it an encumbrance?A registered interest, a security interest over fixtures or included chattels, or an unregistered encumbrance within the regulation.
Is it a title encumbrance?Listed on the title search and not a mortgage, caveat or charge, or an unregistered encumbrance disclosed in the statement.
If not, it is the seller's to clearClause 7.2 promises the property free of it, and clause 5.5 requires a release at settlement.
If the interest cannot be cleared, the seller is unable to perform clause 7.2, and the buyer's position is governed by the default provisions and, where the facts fit, by the statutory right to terminate for defective disclosure. Which route is open, and whether termination or compensation is the better course, depends on what the interest is and how much it matters. It is a question to take to a solicitor before any notice is given, because a buyer who terminates without the right to do so becomes the party in breach.
Where the interest was there to be seen, on the title search the buyer received before signing, the position is different. It is a title encumbrance, and the buyer agreed to it.
## For sellers: read your own title first
The disclosure scheme has moved the work of understanding a title from the buyer's side after signing to the seller's side before listing. A seller now orders the title search at the outset because it has to be handed over. The useful habit is to read it as a buyer would.
Three questions cover most cases. Is there anything on the search besides the seller's own mortgage, and if so, what does the registered document say? Is there anything affecting the land that is not on the search: an arrangement with a neighbour, an old lease, a pipe or line that belongs to an authority? And is there anything registered that should not be there, such as a caveat or an old mortgage that was paid out and never released?
The first two are matters to disclose. The third is a matter to fix. Each is easier before a buyer is found than after.
> The contract's rule is simple: the buyer takes what the title search shows and what the seller disclosed, and nothing else.
Seen that way, the long words in this part of the contract describe a short list. Easements and covenants stay because they belong to the land. Mortgages, caveats and charges go because they belong to the seller. The interests in between are decided by whether the seller told the buyer about them before the contract was signed.