ADIS Code - ROW
A right of way is a particular type of easement, i.e. a right, annexed to land (excluding a right of way in gross), to travel over other land of different ownership in a particular manner (not involving the taking of any of its produce or soil).
A right of way in gross, also known as a statutory right of way, is created in favour of a prescribed authority, ie a statutory authority or a company prescribed by regulation, see s88A Conveyancing Act 1919. A right of way in gross does not have a dominant tenement.
The grantor is the proprietor of the servient tenement.
The grantee is the proprietor of the dominant tenement.
Also see the Dealings involving pages..
Lodgment requirements
Stamp duty - Required if dated before 1.7.1998. If not marked, Registration insisted upon is prohibited.
Not required if dated on or after 1.7.1998.
Registration copy - Required. If unacceptable, Registration insisted upon is prohibited.
Statement of Title Particulars form - Not required.
NOS form - Not required.
Index Particulars form (completion)
(A) Lodging Party - Must be completed.
(B) Instrument - Right of Way
(C) Locality - The situation of the land.
Link Conveyance - For the Old System servient tenement land. For the dominant tenement if Old System land is affected1.
Principal Deed - Not required.
(D) Indexing - The grantor and the grantee.
(E) Certification - Required.
Document requirements
Date: must be dated with the date of execution. If not dated advise the lodging party. If a date is not furnished, indicate Registration insisted upon and include the reason.
Name: the full names (initials are acceptable) of the grantor and the grantee are required. Advise the lodging party of any discrepancies in names.
Operative clause: "... hereby grants a right of way...".
Locality: required. The situation of the land.
Land Description: required for the Old System servient tenement. Required for the dominant tenement if Old System land is affected. Determine if the affected land is Old System or other (see IPF). Where Old System land is affected it must be described by reference to:
- a metes and bounds description
- another registered instrument
- a plan attached
- a Government Gazette notice or
- a lot or parcel in a subdivision.
Link Conveyance: required for the Old System servient tenement. Required for the dominant tenement if Old System land is affected. The last registered conveyance or acknowledgment that evidences ownership prior to Book 4000. Whole or part must be established.
Execution: by the grantor. A power of attorney must be registered. The grantee does not have to sign.
Attestation: required. Must be witnessed by a person of 18 years of age or older who is not a party to the document.
IPF: must be completed.
Staff processing information
A document creating:
- a sole right of way must be entered under the Right of Way Frame, ie code "ROW"
- a right of way and an easement must be entered under the Easement Frame, ie code "EA", with a Noting describing the easement and right of way;
- a right of way and a restriction on the use of land must be entered under the Right of Way Frame, ie code "ROW", with a Noting describing the easement and restriction; and
- for a sole restriction on the use of land.
A right of way affecting land that does not have a Link Conveyance in the form of a Book and No. must be entered with a Noting: "[description of right of way] affecting [land description and manner of acquisition]".
1 Where the servient tenement is Torrens Title land and the dominant tenement is Old System land enter the right of way under the General Frame, ie. code "G" with a Noting: "[description of right of way] and the land in the Link Conveyance is the land benefited (dominant tenement)". Enter the Locality and Link Conveyance for the dominant tenement. Enter the grantor and the grantee as Vendors entries. The right of way may also be registered on the Torrens Title for the servient tenement under the Real Property Act 1900. The right of way cannot be created under the Real Property Act 1900 where the dominant tenement is Old System land.
CA Not required
Indexing
Locality: required. The situation of the land.
Link Conveyance: required for the Old System servient tenement. Required for the dominant tenement if Old System land is affected. The last conveyance or acknowledgment prior to Book 4000. Indicate whole "W" or part "P".
Principal Deed: nil.
Noting: "[description of the right of way]".
Where the servient tenement and the dominant tenements are Old System land: "[description of the right of way]. Bk ... No. ... is the servient tenement. Bk ... No. ... is the dominant tenement".
Where Old System land is affected and:
- part of the land, state: "part being [affected land description]"
- the land description relies on an attached plan, state: "see attached plan" (or Noting Code: "PL").
V: the grantor, deceased estates or trusts, and any variations thereof.
P: the grantee, deceased estates or trusts, and any variations thereof. The prescribed authority is not entered for a right of way in gross.