Consolidation of tenements (also called ‘merger’ or ‘union of tenements’) occurs where the registration of a plan causes part of the servient tenement (land burdened by the easement) to form part of the dominant tenement (land benefited by the easement) of an existing easement.

Old System title

Under Old System Title, an easement is automatically extinguished where the dominant and servient tenements are united in a common ownership in fee simple.

Torrens title

Prior to 1970, in general, the same rule which applied to Old System Title also applied to the Torrens Title system.
Between 1 July 1970 and 1 August 1996, a merger of dominant and servient tenement parcels did not extinguish easements recorded in the Torrens Register (see section 47(7) Real Property Act 1900), nor did common ownership of the tenements terminate easements created under section 88B Conveyancing Act 1919.

Generally, easements will only be removed following lodgment and registration on an appropriate dealing or section 88B instrument.

However, since 1 August 1996, where land both benefited and burdened by an easement has been consolidated into a single parcel, the Registrar General may cancel the easement if satisfied that the easement has no practical application and provided the matter is of a relatively simple nature (see section 49(5)(a) Real Property Act 1900).

In these circumstances, NSW LRS will not carry forward the existing easement on the folio of the Register following registration of a new plan (without the need for a dealing or section 88B instrument to release the easement), provided the whole of the servient tenement and the whole of the dominant tenement are merged into one folio of the Register, there is common ownership (as opposed to part ownership formerly comprised in the subdivided title(s)), and there are no other parties whose consent is required to release the easement.
 
NOTE: This procedure may also be adopted where the subdivided folio(s) of the Register contain a composite easement notification such as ”..............appurtenant to the part shown so benefited affecting the part shown so burdened...............”.

NOTE: Cross easements cannot be extinguished by consolidation of tenements. Reference to cross easements may be removed from the folios of the Register if the party wall no longer exists and/or no longer supplies support for the adjoining buildings. Application must be made by lodging a Request form 11R and must specify the details of the registered instrument creating the cross easement.

See also Merger of tenements in respect of easements.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/
 

Publication Date: March 2025