Release by registration of a dealing or by plan

An easement may be expressly released by:

  • The registration of a Transfer Releasing Easement form under section 47(6) Real Property Act 1900. The easement may be released wholly or in part. In respect of Old System land a deed is required to expressly release an easement.

NOTE: Where an easement affects Torrens Title land and was created by an Old System deed, it may also be released by Transfer Releasing Easement form.

NOTE: Where the dominant tenement is Old System land, the common law releasor will have to be established (by way of Old System search) prior to registration of a transfer.

  • The registration of a Cancellation or Extinguishment of Easement form by the registered proprietor of the dominant tenement to cancel the recording of an easement wholly or in part pursuant to section 47(6A) Real Property Act 1900.
  • The registration of a deposited plan and section 88B instrument, containing Part 1A, which details the easement (or a profit à prendre) intended to be released.

NOTE:  The provisions under section 88B Conveyancing Act 1919 covering release of easements (and profits à prendre) do not extend to releasing restrictions on the use of land or positive covenants.

Release of a 'right of support for land'

Section 177 Conveyancing Act 1919 imposes a duty of care on any person not to do anything on land, which supports other land, which may cause damage by removing the support provided.

For the purposes of section 177 Conveyancing Act 1919, 'supporting land' includes the natural surface of the land, the subsoil of the land, any water beneath.

The common law of negligence 'duty of care' in relation to the right of support for land may be expressly released (see section 177(5) Conveyancing Act 1919). An instrument (e.g. a plan and accompanying section 88B instrument or a dealing) purporting to create an easement for the removal of support should adopt the expression in Part 15, Schedule 8 Conveyancing Act 1919 (see section 181A(2A) Conveyancing Act 1919). See Fact Sheet.

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

 

Publication Date: January 2025