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

Variation of Easement

This page aims to help you complete an electronic Variation of Easement dealing form. This form is used by the registered proprietors of the dominant and servient tenements to record a variation in the terms or site of an easement pursuant to section 47(5A) Real Property Act 1900. If the creating instrument includes a third party whose consent is required to vary the easement, they must be a party to the deed of variation.

NOTE: A variation to the terms or site of a profit prendre or forestry right must be lodged as a Dealing with Exception.

NOTE: Both the registered proprietor of the servient tenement and dominant tenement/prescribed authority 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

Legislation – section 47(5A) Real Property Act 1900.

Stamp Duty – not required.

Notice of Sale – not required.

Standard Form of Caveat – a caveat noted on the dominant tenement will prevent the recording of a Variation of Easement. Will also prevent registration where the caveat is noted on the servient tenement and the variation increases the burden of the 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 Variation of Easement dealing form.

Land Title

Enter the land title reference(s) for the servient tenement.

Participant Details

Party Details – Party Name

Select the registered proprietor of the servient tenement.

Enter the registered proprietor of the dominant tenement.

Document

Create Document – Select Other Documents.

Select Variation of Easement.

Registered Proprietor of the Servient Tenement

Select the registered proprietor of the servient tenement.

Registered Proprietor of the Dominant Tenement

Select the registered proprietor of the dominant tenement. If the easement is an easement in gross, then the name of the Prescribed Authority may be entered here.

Servient Tenement

Enter the servient tenement.

NOTE: Either the Dominant Tenement data field or Easement in Gross/Prescribed Authority data field must be completed.

Dominant Tenement

Enter the dominant tenement if applicable.

Easement in Gross/Prescribed Authority

Enter ‘easement in gross’ or the name of the prescribed authority if applicable.

Easement Registration Number Varied

Enter the registration number of the easement.

Nature of Easement

Enter the nature of the easement. For example, an easement to drain water, right of carriageway or easement for services.

Variation as Set Out In

The manner in which the easement is set out in must be stated i.e. annexure, deposited plan or plan annexed.

Attachment

Attachment Type - Terms and Conditions (optional)

Attach the terms and conditions of the variation.

Attachment Type – Plan

Where the site of an easement is being variated, a plan must be attached.

NOTE: An extra fee is payable for a plan annexed setting out a variation of the site of the easement.

Attachment Type – Approved Forms

Where the registered proprietor 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 registered proprietor 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 varied burdens 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.
 
Attachment Type – Caveator’s Consent

Attach a caveator’s consent if required.

Attachment Type – Supporting Evidence

The consent of any registered lessee, mortgagee, chargee or covenant chargee of either the dominant tenement or the servient tenement must 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.

The evidence that the Subscriber is required to retain to support a Variation of Easement dealing form may include:

  • a true copy of the duly executed version of the document(s) uploaded as an attachment.

Other forms of evidence may be acceptable and 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