RIGHT TO USE LAND FOR A SPECIFIC PURPOSE
The term ‘easement’ is defined as being a section of land on your property which gives someone (usually a third party) the right to use the land for a specific purpose. Easements can be created through one (1) of the following methods:
- An express grant of an easement through registration of the easement through the NSW Land Registry Services;
- Resumption or acquisition of land by the Government as published in the Government Gazette; or
- An order of the Court.
The general requirements for a valid easement include:
- The person granting the easement (also referred to as the ‘dominant tenement’) must be the owner of the land;
- The right must benefit the ‘servient tenement’, that is, a person that is not the owner of the land;
- If the easement is created over a public road, or a Crown public road, then consent from the Roads Authority is required;
- The easement must clearly specify the land benefited and burdened by the easement, as well as any conditions affecting the use of the easement;
- The easement cannot extend beyond the limits of the dominant and servient tenement, meaning that the easement cannot be longer than either of the person’s interest in the land; and
- The easement must be one that is recognised by law, and if not, the right must first be decided by a Court before it can be registered.
Old Systems Title v Torrens Title Land
The registration of an easement under Old System Title and Torrens Title may differ. Today, most properties operate under the Torrens Title system, so this may not affect you.
If you are the owner of the land under the Torrens Title system, and the easement is being created over Old Systems Title land, you cannot simply register the dealing. In order to register the easement, you will need to make a ‘Primary Application’ over the affected land, and lodge an instrument pursuant to section 88B of the Conveyancing Act 1919 (NSW).
On the other hand, if the dominant tenement is Old Systems Land and the servient tenement is Torrens Title Land, then you are able to simply register the easement or you may choose to lodge the section 88B instrument.
It is important to determine whether your land is under Old Systems Title or Torrens Title. If you have purchased a new property, or seek to create an easement over a new property, then it is more likely that the land is Torrens Title land. In particular, the NSW Land Registry Services are seeking to convert many Old System Title land into Torrens Title, allowing for a more uniform process of registering dealings over the land.
Characteristics of a valid easement
In order for an easement to be considered ‘valid’, it must have the four (4) following characteristics:
- The rights granted by the easement must not be too wide or vague;
- The rights must not amount to joint occupation;
- The rights granted under the easement must not substantially deprive the landowner the legal possession of their land; and
- The rights must not constitute mere rights of recreation.
A cross-easement is a reciprocal easement created over the land of the servient tenement. Essentially, both parties agree that an easement will be created over part of their land to the benefit of the other. This is a common form of easement in terms of neighbouring properties who share a ‘party wall’ together.
A cross-easement can be created in the following manner:
- If a plan has been lodged before 1 August 1996, then both parties may apply to register a cross-easement under section 48 of the Real Property Act 1900 (NSW);
- If a plan lodged before 1 August 1996 refers to a ‘party wall’, then a cross-easement is recorded on the Register;
- If a plan has been lodged after 1 August 1996, then both parties may apply to register a cross-easement under section 48(1A) of the Real Property Act 1900 (NSW);
- If a plan lodged after 1 August 1996 refers to a ‘party wall’, a cross-easement is automatically created pursuant to section 88BB of the Conveyancing Act 1919 (NSW).
Variation of easements
Section 47(5A) of the Real Property Act 1900 (NSW) allows the parties to vary the terms of the easement.
If the easement creates a ‘restriction’ on the use of the land (also known as a ‘restrictive covenant’), then the easement can only be varied by:
- An order of the Court;
- Agreement between the parties; or
- The restriction becoming unenforceable.
Extinguishment of easements
An easement may be extinguished or released in the following manner:
- Register a ‘Transfer releasing easement’ document to the NSW Land Registry Services;
- If the easement has been abandoned, the Registrar General may cancel the easement;
- The land of the dominant and servient tenement has been consolidated into a single parcel of land;
- Sunset Clause – a term in the easement that states when the easement is to cease; and
- Order of the Court.
Enforcing your rights under the easement
The dominant tenement must not do anything that interferes with the servient tenement’s benefit to use the land subject to the easement. If the dominant tenement is affecting your benefit to the land the subject of the easement, you have the right to take the following action:
- Abatement – taking reasonable steps to get rid of the interference. You must not use unreasonable force, cause a breach of peace, or cause any injury to the public.
- Court action – you may file an Application in the Supreme Court of NSW and seek an order from the court for damages, nuisance or an injunction.
Our Expert Team of Lawyers
At JB Solicitors, we are able to assist you in registering an easement, setting out the terms of the easement, advising you on your rights and obligations under the easement, as well as advise you on your next steps should you wish to either enforce, vary, or extinguish the easement. Contact JB Solicitors today for your first consultation.