A prescriptive easement may arise from continuous long term use of land that has the characteristics of an easement. However, the Torrens Register does not recognise prescriptive easements, and subject to the below commentary, it is not possible to register easements of this kind on the Torrens Title Register.
Any prescriptive easement in existence when the servient tenement is converted to Torrens Title will remain effective even though not recorded in the Register.
To have a subsisting prescriptive easement recorded on the Register, it is necessary to register an instrument or obtain a Court Order confirming the existence, nature and extent of the easement.
By Instrument
The parties may by agreement lodge an instrument formally creating the easement. The instrument can take the form of a transfer or conveyance depending on the title system of the lands. An easement may also be created by inclusion in a section 88B instrument lodged with a deposited plan.
Where the dominant or servient tenement is Old System, a primary application may be lodged to have the instrument evidencing the easement recorded on the Register.
By Court Order
The legal recognition of a prescriptive easement depends ultimately on the actions of the servient owner. There must be proof that the servient owner knew of the exercise of the right, was under no legal disability to make a grant of the right and did not take steps to prevent or limit the acts of the user.
An owner (usually of the dominant tenement) may seek to confirm the existence of the prescriptive easement by obtaining a Court Order. The easement can be recorded by lodging the Court Order together with:
- a Request form 11R where both tenements are Torrens Title or where the dominant and servient tenements are Torrens and Old System Title respectively; or
- a Primary Application where both tenements are Old System Title or the dominant and servient tenements are Old System and Torrens Title respectively.
If there is no suitable plan already held on public record, a plan may also be required to define the site of the easement. Depending on the survey detail, the plan could be lodged with the Court Order or separately, as a deposited plan referenced in the Court Order.
Publication Date: July 2025