NOTE: All Statutory Declarations and evidence that are lodged in support of land dealings will be treated as publicly accessible and will be disclosed to persons upon request.
Dealing type - EA
Legislation - s49 Real Property Act 1900
Stamp duty - not required
NOS form - not required
Standard form of Caveat - prevents registration where the caveat is noted on the dominant tenement.
Does not prevent registration where the caveat is noted on the servient tenement.
Priority Notice noted on the Register - see Priority Notice page.
Pursuant to s49 Real Property Act 1900 an easement may be cancelled or partially cancelled where evidence is furnished to show that the easement has not been used for at least 20 years.
Note This does not include easements in gross or easements in favour of a statutory authority.
Note A Caveat form 08X suitably modified may be lodged to prevent registration of an application to cancel an easement due to abandonment.
(A) The references to title for the dominant and servient tenement titles must be stated.
(B) The registered number and nature of the easement must be stated.
(D) The applicant must be the registered proprietor of the servient tenement. The full name of the applicant must be stated and be identical to the name as shown on the Torrens Title Register.
(E) Details of all parties having a registered interest in the dominant tenement must be stated.
(F) Specify the evidentiary statutory declarations annexed to the application. Statutory declarations by the applicant and at least one person who is not affected by the easement are required regarding the non-use of the easement. The declarants should state in as much detail as possible:
- their means of knowledge of the matters contained in the declaration
- the length of non-use of the easement that they have personally observed
- the date that the easement ceased to be used, and any circumstances relevant to that cessation
- particulars of any structures erected on the site of the easement, or other factors which make the easement physically unusable
- when and by whom such structures were erected and
- whether they know of any litigation involving the subject easement and, if so, the nature and result of the litigation.
If the easement cannot be used because of buildings or other obstructions erected on the easement site, a statutory declaration by a registered surveyor and a sketch showing the location of the structure or obstructions in relation to the easement is required.
Also see Registrar General's Guidelines - Deposited plans
(G) Must not be deleted. Additional fees assessed by NSW LRS may be payable before registration.
(H) The statutory declaration must be made by the applicant, the applicant's attorney, or where the applicant is a corporation, an authorised officer of the applicant, and must be witnessed by a prescribed functionary. Where the declaration has been made outside NSW reference to the Oaths Act 1900 must be deleted, the relevant Act must be inserted and the alteration verified.
Staff processing information
Refer to LEG99 then to SM99.
All evidence lodged must be filmed with the minute papers, and the minute papers retained permanently.