The requirements for section 88B instruments are set out in schedule 8 of the Lodgment Rules.
Creating and releasing affecting interests
Affecting interests include:
- Profits à prendre
- Restrictions on the use of land
- Positive covenants.
Section 88B Conveyancing Act 1919 enables the creation and release of affecting interests (only easements and profits à prendre may be released) upon the registration of the plan. The Plan must be accompanied by a section 88B instrument in accordance with clause 18(3) Conveyancing (General) Regulation 2018.
The instrument must be prepared by completing either the Approved Form 10 Section 88B Instrument, Interactive s88B Form or created in the s88B Form Builder through NSW LRS Connect and must be lodged with the plan.
Where a section 88B instrument, includes height limitations to define the stratum of an affecting interest, the deposited plan must comply with clauses 13, 69 and 71 Surveying and Spatial Information Regulation 2017.
Preparation of the instrument
A section 88B instrument comprises three parts:
Part 1 must be used if it is intended to create new affecting interests upon registration of the plan. It must identify each affecting interest to be created and identify the lot(s) to be burdened and the lot(s) or authority to be benefited.
Part 1A must be used if it is intended to release existing easements or profits à prendre. It must clearly identify the details of each easement or profit à prendre to be released. The details must include the creating instrument, the identity of the land burdened and the identity of the land or authority benefited.
Note: Restrictions on the use of land and positive covenants cannot be released by a section 88B instrument.
Part 2 must be used to provide the terms of the affecting interests referred to in Part 1 (if required). Part 2 may not be required if it is intended to adopt the statutory terms for easements as provided in Schedule 4A or Schedule 8 Conveyancing Act 1919.
Each affecting interest to be created must have terms. The terms must be provided in part 2 of the instrument unless it is intended to adopt statutory terms as mentioned above.
Note: In some circumstances easements may be given double names, for example, Right of Carriageway and Easement for Support. These are not regarded as statutory easements and consequently the terms should be included in Part 2 of the instrument.
In order to simplify the creation of easements, statutory terms are provided in Schedule 4A (easements in gross) and Schedule 8 (easements having a dominant tenement) Conveyancing Act 1919. The use of these statutory terms does not prevent (if so desired) the inclusion of variations to the terms specified in the schedules. Such variations may be by way of addition, exception, qualification or omission, see section 181A(3) Conveyancing Act 1919.
Right or consent to release, vary or modify
The terms for a restriction on the use of land may also include the persons (if any) who have the right to release vary or modify the restriction. See section 88(1)(c) Conveyancing Act 1919.
The terms for an easement or restriction on the use of land may also include the persons (if any) whose consent is required to release vary or modify the easement or restriction. See section 88(1)(d) Conveyancing Act 1919.
Signatures and consents
The instrument must be signed in accordance with schedule 9 of the Lodgment Rules.
All signatures on the instrument must be on the final page(s).
All signatures must be attested to by a witness.
Each page other than the final page(s) must be signed by an attesting witness to the final page(s).
Note: The term signature includes the affixing of a seal or any other method by which a corporation or prescribed authority executes an instrument.
Creating affecting interests
If affecting interests are to be created the instrument must be signed by the following in relation to the land affected:
- the registered proprietor, including statutory authorities
- chargee, and/or
- covenant chargee.
The instrument must also be signed by any prescribed authority that is benefited by an affecting interest.
If the terms of an easement, as set out in a Section 88B instrument, impose an obligation on a prescribed authority or the owner of the dominant tenement to maintain or repair (or contribute to the maintenance or repair) of the easement, the authority or owner must execute the instrument.
Written consents to the registration of the plan must be furnished, in accordance with section 195D Conveyancing Act 1919, by any:
- lessee, or
- judgement creditor under any writ,
Note: Written consents may be dispensed with if the caveator, lessee or judgement creditor signs the plan and instrument.
Releasing an easement or profit à prendre
The instrument must be signed in accordance with schedule 9 of the Lodgment Rules namely:
- all parties relating to the dominant tenement together with any person specified in the creating instrument as having the right to release, vary or modify the easement or profit à prendre.
- Any prescribed authority which has the benefit of the interest.