The terms or the site of an easement may be varied (s.47(5A) Real Property Act 1900). A Variation of Easement dealing form 20EV (PDF 462 KB) should be prepared and lodged for registration in NSW LRS. It should contain the terms of the variation and be signed by the registered proprietors of the land benefited and burdened by the easement.
Other parties with a registered estate or interest in either the land benefited or burdened must also sign the Request, or provide written consent to the variation. If the site of an easement is to be varied, the Request should refer to a plan illustrating the varied site. The plan will be either:
- a deposited plan of survey or compilation, or
- a compiled plan annexed to the Request.
Note A compiled deposited plan or annexure must comply with NSW LRS Compiled Plan Guidelines and will require the prior approval of the NSW LRS plan and Title Advisor. A restrictive covenant or restriction on the use of land may be varied, released or extinguished by:
- an Order of Court
- an agreement between the proper parties
- the restriction having become unenforceable
A suitable application should be made on the appropriate dealing form to vary, release or extinguish a restrictive covenant or restriction on the use of land. The dealing must be executed by each person:
- entitled to enforce or having the benefit of the covenant and
- in the case of a variation, against whom the covenant may be enforced.
Note Variations of restrictions on the use of land and/or variations of positive covenants cannot be included in section 88B instruments.
Easements created in respect of strata schemes affecting part only of a building may be varied by agreement or Court Order.
Where a Court has made an Order modifying an easement under s.89 Conveyancing Act 1919 it will be recorded in similar fashion to an Order modifying a restrictive covenant.