Registration of a dealing
An easement may be created by the registration of a Transfer Granting Easement form 01TG (PDF 592 KB), or by Lease form 07L (PDF 234 KB), National Mortgage form or Charge form 06C (PDF 163 KB). A grant of easement over Old System land must be made by a valid deed.
An easement may also be created when disposing of an estate or interest, by incorporation in a Transfer Including Easement form 01TE (PDF 648 KB), by conveyance of a grant in favour of the transferee or by a reservation for the benefit of the transferor.
The site of the easement must be indicated in either a sketch annexed to the transfer or a deposited plan. For more information see General plan requirements page.
Implied Grant or Reservation
An easement may have been created in cases where it was 'implied' in an Old System conveyance or deed. For example, an 'easement of necessity' will be implied against the vendor where he or she retains the surrounding land and the easement is absolutely necessary for the practical use of the dominant tenement. The easement is limited to the necessity which existed at the time of the grant and will be available only for such purposes as were necessary to make the land useable.
In order to have an implied easement recorded in the Register it is necessary to obtain an instrument or a court order (under s.89(3) Conveyancing Act 1919) confirming the existence and terms of the easement.
If an easement has been created by implied grant before the land is converted to Torrens title, the easement will subsist against the servient tenement even though not recorded on the title for the land.
Where the land is already under the Real Property Act 1900 an implied easement can be created only in limited circumstances. For further information on implied easements - see Hallmann [par 8.5].
Registration of a deposited plan
Section 88B Conveyancing Act 1919 (commencing 16 June 1964) provides for the creation of easements, profits à prendre, restrictions on the use of land and positive covenants by the registration of an instrument attached to the plan. The easements or restrictions may be created as part of a plan for subdivision or consolidation purposes, or alternately, a plan lodged may be prepared for easement purposes only.
Private easements or easements in gross may be created:
- affecting or for the benefit of parcels within or outside the plan
- burdening land in the plan appurtenant to existing roads or roads created by the registration of the plan
- burdening land outside the plan benefiting roads created by the registration of the plan
- burdening roads in the plan (new or existing).
Section 88B allows for the creation of easements with the dominant and servient tenements in the same ownership.
Note Where the dominant tenement of an easement is described as a specific road or piece of road within a new subdivision the plan must clearly identify the piece(s) of road being given the benefit. See DP1075315 as an example. A notification relating to the appurtenant easement will be added to the cancellation notification on the title being subdivided that contains the fee of the road. All new plans that create easements appurtenant to new roads will be referred to the NSW LRS plan and Title Advisor for assessment. The Plan and Title Advisor can be contacted on 02 9228 6817 or email@example.com
Easement purposes only plans
The site of the new easement as set out in a new deposited plan for easement purposes must either be defined by survey or comply with the Registrar General's requirements for a compiled plan. Easement Purposes Only plans must not redefine the boundaries of the parcel affected by the new easement unless those boundaries constitute the extent of the site. All standard procedures for the preparation of a deposited plan apply. Permanent and Reference Marks should comply with cl.18 Surveying and Spatial Information Regulation 2012. See also Placement of permanent marks page.