An easement may be expressly limited to operate until a certain future date, the happening of an agreed event or a breach of some condition (sunset clause).

The registered proprietor of the servient tenement may request the cancellation of an easement, which includes a sunset clause, by lodgment of a Request form 11R together with relevant evidence that the sunset clause has expired. The facts are required to be proved strictly, unless they can be supported by additional evidence from registered proprietor of the dominant tenement.

Alternatively, an easement subject to a sunset clause may be cancelled by including the easement as an item in Part 1A of a section 88B instrument. Reference to the easement in the schedule in the instrument should be annotated "sunset clause invoked". Evidence in the form of a statutory declaration, should be supplied by the surveyor of the new plan and the registered proprietor(s) stating that the event(s) specified in the sunset clause have now come to fruition.

In the absence of any evidence or implied agreement from the registered proprietor of the dominant tenement, the Registrar General may send notice of the intention to cancel the recording of the easement to the registered proprietor and any other person with an interest in the easement unless a Court Order is obtained and lodged with NSW LRS to prevent the cancellation.

Where the Registrar General is satisfied that the easement has ceased to exist, the recording may be cancelled under section 32(6) Real Property Act 1900.

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

Publication Date: January 2025