Registration of a dealing
An easement may be created by the registration of a:
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 (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 dealing or a deposited plan. For more information see General requirements.
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 section 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 it is 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. Please contact NSW LRS; Legal division in these instances who can provide further guidance (ldr@nsw.com.au).
By prescription
Where there has been long continued use or exercise of a right over another person's land that has the characteristics of an easement, in theory the Court will presume the grant of an easement. There is no statutory recognition of easements arising purely from long continued use in NSW. In order to have a subsisting prescriptive easement recorded on the Register, it is necessary to obtain an instrumnet or a Court Order confirming the existence, nature and extent of the easement.
For more information see Easements created by prescription.
Registration of a deposited plan
Section 88B Conveyancing Act 1919 (which commenced 15 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 (a section 88B instrument). The easements or restrictions may be created as part of a plan for subdivision, consolidation, redefinition or alternately, easements may be created by a plan for easement purposes only.
Private easements or easements in gross may be created:
- affecting parcels or for the benefit of parcels within or outside the plan
- burdening land in the plan appurtenant to existing roads or roads which intend to be created by the registration of the plan
- burdening land outside the plan or benefiting roads created by the registration of the plan
- burdening roads in the plan (new or existing). For more information see Easements and Positive Covenants Created Over Roads.
Section 88B(3)(c)(ii) Conveyancing Act 1919 allows for easements to be created where the dominant and servient tenements are in the same ownership.
NOTE: Where the dominant tenement of an easement is described as a specific road or a 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 simple of the road. All new plans that create easements appurtenant to new roads will be referred to the NSW LRS Plan and Titling Advisor for assessment. The Plan and Titling Advisor can be contacted at plan-info@nswlrs.com.au.
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 Marks and Reference Marks should be placed or connected in accordance with clause 41 and clause 18 Surveying and Spatial Information Regulation 2017 respectively.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: January 2025