Definitions
Easement
An easement is a right applying over land. An easement enables a parcel of land to have the use of other land that may be in different ownership for a specific non-exclusive purpose. Without the easement, the use of the land may constitute a trespass or nuisance.
Easements fall into two categories:
- Private easements are made by agreement between the owners of two or more parcels of land. Easements may be created by a dealing (eg Transfer Granting Easement) or by the registration of a plan. The land having the benefit of the easement is known as the dominant tenement while the land having the burden of the easement is known as the servient tenement and
- Easements in gross are created in favour of a prescribed authority (being the Crown, a public or local authority constituted by an Act or a prescribed corporation). An easement in gross does not require a dominant tenement and the right to release, vary or modify easements in gross is vested in the creating authority.
Restriction on use of land (restrictive covenant)
A restriction on the use of land is a condition on the land owner not to use the land for a specified purpose or in a specified manner.
A restriction on use must be negative (restrictive) in nature and may not impose a duty to do any positive act. A restriction may be created by agreement between two or more parties by a dealing (e.g. Restriction on the Use of Land) or by the registration of a plan. The benefit of the restriction may be adjoining land, nearby land or a prescribed authority.
Restrictions on use may be created to, for example:
- protect a residential amenity e.g. a view
- preserve the environment e.g. preventing the lopping of trees or restricting where buildings can be erected and
- restrict undesirable development and preserve the character of the neighbourhood e.g. limiting the height of buildings and/or the material of construction and/or fencing type.
Profit à prendre
A Profit a prendre is a right to take the produce of a parcel of land that is owned by another person e.g. harvesting and removing produce (crop or livestock), taking soil, felling and removing timber etc.
Positive Covenant
A public positive covenant is a positive obligation imposed by, or for the benefit of a prescribed authority requiring the maintenance and/or repair of land e.g. to maintain a building and its foundations, to ensure the safe working of a railway passing below it, or to erect a habitable dwelling upon the land within a specified period of time. The positive covenant must be in terms that directly require the owner of the land to take positive action.
A positive covenant for maintenance and repair of easement site may be created by parties to a registered easement to maintain and/or repair the easement site.
Duty of care in relation to the 'right of support for land'
Section 177 Conveyancing Act 1919 provides that, for the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land in its natural state. This means that a person cannot do anything in relation to land which would remove the support afforded to any other land (the supported land). However, this duty of care may be excluded or modified by express agreement between the person on whom the duty lies and the person to whom the duty is owed. See section 177(5) Conveyancing Act 1919.
Requirements for the creation of easements
An easement (which is not an easement in gross) must have a clearly defined dominant and servient tenements in separate ownerships. There are two statutory exceptions to this rule:
- section 88B(3)(c)(ii) Conveyancing Act 1919 enables easements to be created by the registration of a plan even though the land benefited and burdened is in the one ownership and
- section 46A Real Property Act 1900 enables easements to be created by the registration of a dealing even though the land benefited and burdened is in the one ownership.
- NOTE: Section 47(7) Real Property Act 1900 provides that where an easement is created on or after 1 July 1970, the acquiring of both tenements does not automatically extinguish the easement.
The dominant tenement of an easement attaches to the land and is not personal to the owner of the land, i.e. when the land is transferred, the new occupier acquires the benefit of the easement.
An easement in gross can be created (without a dominant tenement) where the easement is:
- in favour of a prescribed authority recognised in sections 88A(1), (1A), (1B) Conveyancing Act 1919
- in favour of the Commonwealth or a Commonwealth authority
- in favour of a licensee under section 61(2) Pipelines Act 1967 or
- an easement for public access created under section 5.51 Crown Land Management Act 2016.
Proposed easement plans
A plan defining the site of a 'proposed' easement, i.e. one which is intended to be created at a date subsequent to the registration of the plan, may be lodged and registered in NSW LRS. The proposed easement will then be created on registration of an appropriate Transfer Granting Easement dealing (or similar). A proposed easement plan must:
- not be accompanied by a section 88B instrument
- denote the site as 'Proposed easement for …………....' and
- not bear any signatures (as the affected parties will sign the subsequently lodged creating instrument).
No notification of the easement will be entered in the Second Schedule of the affected folio(s) of the Register, however, reference to 'DP........ Proposed Easement' will be shown in the 'Notations' field. This notation will be removed from the folio by the registration of a Request 11R dealing together with a letter from the registered proprietor of the land and/or Authority that is intended to benefit from the proposed easement detailing the reasons as to why the notation should be removed.
Easement plans prepared by government and prescribed authorities
Easement plans prepared by the government and prescribed authorities should comply with the general requirements for easements. Exceptions will be granted for:
- 'term easement plans', where the term of the easement does not exceed that of the lease (e.g. where the easement has been created for purposes relating to substation premises) or
- easements over existing centre line of poles, as required by electricity authorities.
Plans prepared for these purposes must be signed by a registered surveyor.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Publication Date: January 2025