Regardless of the title system, the following conditions must be satisfied before an easement can be created:
- the grantee must be the owner of the land capable of being the dominant tenement.
- the dominant and servient tenements do not have to be contiguous, but an easement must benefit the land specified as the dominant tenement. A right that only benefits the owner of the land is not an easement.
- all owners of the dominant and servient tenements must be parties to the creation of the easement.
- where an easement is being created over public road or Crown public road, consent of the Roads authority, and in the case of a Crown public road consent of Crown Lands, must be obtained.
- an easement must specify the land benefited and burdened by the easement, and any conditions affecting the use of the easement.
- an easement cannot extend beyond any limits set on the interest of the owners of the dominant and servient tenements, e.g. for the life of a person, or a term defined by a lease. Reference to the life estate or term is included in the easement notification on the title.
- an easement may be limited in time or be determined by a certain event as specified in the terms of the easement. Reference to the term or event is not included in the easement notification on the title.
- the easement must be one that is recognised by law. An unusual right must be recognised by a Court as being an easement before it can be accepted by NSW LRS.
Note 1 An easement, where the dominant tenement is Torrens title land and the servient tenement is Old System land cannot be created under the Real Property Act 1900 by lodgment in NSW LRS of a transfer granting easement. These easements may only be created by a Primary Application over the site (or over the entirety of the affected parcel) and inclusion in the section 88B instrument lodged with the deposited plan of survey accompanying the application.
Note 2 An easement, where the dominant tenement is Old System land and the servient tenement is Torrens title land, will be registered on the title for the servient tenement. It will be created by either lodgment of a transfer granting easement or by inclusion in a section 88B instrument lodged with a deposited plan of survey.
Note 3 An easement may contain a Sunrise Clause i.e. a clause that states that the easement will commence operation only after a specified date or the occurrence of a particular event. However, a notification relating to the easement will be endorsed on the relevant folios of the register immediately upon registration of the dealing or instrument.