On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Transfer Including Easement

This page aims to help you complete an electronic Transfer Including Easement dealing form. This form is used to transfer a folio of the Register and simultaneously creates an easement over the land transferred or other land of the transferor.

Refer to the following for:

NOTE: Where an easement is being reserved and the dominant tenement is Old System land or an easement in gross, this dealing form must be lodged as a Dealing with Exception. An easement cannot be registered under the Real Property Act 1900 where the servient tenement is Old System land.

NOTE: A transfer of part of the land must be lodged as a Dealing with Exception.

NOTE: Where a writ is noted on title, this dealing form must be lodged as a Dealing with Exception, unless the judgment creditor consents to the Transfer including Easement or the writ is removed.

NOTE: Both the transferor and the transferee must be represented in the workspace for this dealing form.

Subscriber requirements

Before lodging this document electronically via an Electronic Lodgment Network, a Subscriber must:

  1. verify their Client’s identity
  2. establish their Client’s right to deal with the land
  3. have a properly completed and executed Client Authorisation form and
  4. retain evidence that supports the dealing (see Supporting Evidence below).

The Subscriber must also certify that they have taken reasonable steps to ensure that the instrument is correct and compliant with relevant law and any Prescribed Requirement.

For more information on these requirements see:

Residual Documents

Guide to complete

Stamp Duty – required.

Notice of Sale – required. There is no need to separately create a Notice of Sale form. The Notice of Sale form is automatically produced in the workspace and sent to NSW LRS when the instrument is lodged.

Standard Form of Caveat – a caveat noted on the land being transferred or the servient tenement will prevent the recording of a Transfer Including Easement.

Priority Notice Noted on the Register - see Priority Notice page for more information.

The following headings refer to the data fields which must be completed in order to lodge an electronic Transfer Including Easement dealing form.

Land Title

Enter the land title reference(s) of the land being transferred.

Participant Details

Party Details – Party Name

Select the transferor, being the registered proprietor of the land being transferred.

Enter the transferee.

Document

Create Document – Select Other Documents.

Select Transfer Including Easement.

Transferor

Select the transferor.

Where an easement is being granted the transferor must be the registered proprietor of the servient tenement.

Where an easement is being reserved the transferor must be the registered proprietor of the dominant tenement.

Transferee

Select the transferee.

Where an easement is being granted the transferee must be the registered proprietor of the dominant tenement.

Where an easement is being reserved the transferee must be the registered proprietor of the servient tenement.

Tenancy/Shares of the Transferee

Enter the tenancy/shares of the transferee.

Consideration

Consideration Type

Select one of the following consideration types:

  • With monetary consideration - where a transfer involves payment of monies.
  • Without monetary consideration and as regards a deed of partition - where a transfer does not involve payment of monies and satisfies the conditions set out in a deed of partition.
  • Without monetary consideration and as regards a deed of assignment - where a transfer does not involve payment of monies and satisfies the conditions set out in a deed of assignment.
  • Without monetary consideration and as regards a court order - where a transfer does not involve payment of monies and satisfies the conditions set out in a Court Order.
  • Without monetary consideration and as regards an intergenerational assignment - where a transfer does not involve payment of monies and satisfies the conditions of an intergenerational assignment.
  • Without monetary consideration and a change in manner of holding - where a transfer does not involve payment of monies and alters the names, tenancy and/or shares of the registered proprietors.

Gross Consideration Amount

Enter the consideration amount where the transfer is with monetary consideration.

Consideration Details

Enter the consideration details where the transfer is without monetary consideration.

Servient Tenement (Land Burdened)

Enter the servient tenement.

Dominant Tenement (Land Benefited)

Enter the Dominant tenement.

Transfer Including Easement

Select from one of the following:

  • The transferor transfers to the transferee an estate in fee simple and grants an easement as set out in the attachment.
  • The transferor transfers to the transferee an estate in fee simple and reserves an easement as set out in the attachment.
  • The transferor transfers to the transferee an estate in fee simple and grants and reserves an easement as set out in the attachment.

Attachment

Attachment Type – Terms and Conditions

Complete and attach the Schedule to Transfer Including Easement (Form SCHD-01TE).

Schedule 1 – Grant of Easement

Any easement granted by the transferor must be described in Schedule 1. All parties must sign directly below the details of the easement.

The description of the easement must:

  • state the type of easement, and
  • state how the easement site is described/designated in the plan showing the site, and
  • make reference to the plan showing the site, (i.e. 'DP...' or 'plan annexed to dealing), and
  • refer to any annexure setting out the terms and conditions related to the easement.

NOTE: A solicitor, barrister or licensed conveyancer cannot sign on behalf of a party burdened by the easement.

Schedule 2 – Reservation of Easement

Any easement reserved by the transferor must be described in Schedule Two. All parties must sign directly below the details of the easement.

The description of the easement must:

  • state the type of easement, and
  • state how the easement site is described/designated in the plan showing the site, and
  • make reference to the plan showing the site, (i.e. 'DP...' or 'plan annexed to dealing), and
  • refer to any annexure setting out the terms and conditions related to the easement.

NOTE: When an easement is being reserved for the benefit of a third party (not being the transferee), the full name of the registered proprietor of the dominant tenement must be stated in this Schedule and be signed by the dominant tenement and be witnessed.

NOTE: A solicitor, barrister or licensed conveyancer cannot sign on behalf of a party burdened by the easement.

Attachment Type – Plan

Attach a plan where the description of the easement is reliant on a plan.

NOTE: A plan fee is payable where the dealing is reliant on a plan annexed.

Attachment Type – Caveator’s Consent

Attach a caveator’s consent if required.

Attachment Type – Lessee’s Consent

The consent of the lessee of a registered lease affecting the servient tenement is required.

Attachment Type – Supporting Evidence

Where the transferor or transferee is the owners corporation of a strata scheme, the following certificates are required:

Execution of the certificates must take the form as set out in strata schemes Approved Form 23.
 
Where the transferor or transferee is the association of a community, precinct or neighbourhood scheme, a certificate in the form of Approved Form 21 is required. Execution of the certificate must take the form as set out in community title schemes Approved Form 18.

If the Easement being created benefits association property or the whole of a community parcel then an ordinary resolution and a certificate as in Community Title Schemes in Approved Form 40 is required.
 
A Minister's consent must be attached where:

  • a Crown land restriction pursuant to the former section 102 Crown Lands Act 1989 is noted on the servient tenement title or
  • the easement burdens the land in a Crown Land perpetual lease and the land is dedicated as State Forest, see section 34 Forestry Act 2012.

The Crown Lands Act 1989 has been repealed, and the requirements of section 102 are reflected in sections 3.17, 3.26 and 3.27 Crown Land Management Act 2016.

The written consent of a registered lessee or mortgagee of a lease affecting the servient tenement is required in accordance with section 5.48 and with the exceptions set out in section 5.49 Crown Land Management Act 2016.

Where there is a writ recorded on the title, and the consent of the judgment creditor for this Transfer has been obtained, the consent is required to be attached.

Supporting evidence

In addition to evidence supporting the steps taken by the Subscriber to verify the identity of their Client and establish their Client’s right to deal, the Subscriber may be required to retain other evidence to support the dealing.

It is a matter for the Subscriber to be satisfied that they have met the requirements for the dealing. Please refer to the ARNECC Guidance Note 5 for assistance on retaining evidence to support conveyancing transactions in accordance with the NSW Participation Rules.

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