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 granting easement

Form   01TG (PDF 600 KB)

Dealing type - TG

Stamp duty - required only where monetary consideration is paid for the grant of easement, otherwise not required.

NOS form - not required.

Standard form of Caveat - prevents registration if noted on the servient tenement. Does not prevent registration if:

  • noted on the dominant tenement.
  • the easement is granted by a mortgagee or chargee in possession.

Priority Notice noted on the Register - see Priority Notice page.

Minister's consent is required where:

  • a Crown land restriction pursuant to s102 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 s34 Forestry Act 2012.

The written consent of of a registered lessee or mortgagee affecting the servient tenement is required; however consent of the mortgagee will be implied where the mortgagee has produced the title for the transfer.

An extra fee is payable where the dealing is reliant on a plan annexed.

A Transfer granting easement over own land form 01TO is used for the creation of an easement where the dominant tenement and the servient tenement are held by the same registered proprietor. For:

(A) The reference to title for the servient tenement (land burdened by the easement) must be stated.

The reference to title for the dominant tenement (land benefited by the easement) must be stated. If the dominant tenement is Old System land it must be described by reference to an instrument registered in the General Register of Deeds. 

For an easement in gross the dominant tenement panel must be completed with the name of the relevant statutory authority or the words 'easement in gross'.

 Note  An easement in gross does not have a dominant tenement. See s88A Conveyancing Act 1919.

(C) The full name of the transferor must be stated and must be identical to the name of the registered proprietor of the servient tenement as shown on the Register.

A mortgagee or chargee in possession must furnish a statutory declaration stating that the mortgagee or chargee is in exclusive possession of the land.

(D) The consideration is optional.

(E) 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.

A transfer granting an easement where the dominant tenement is Old System land may be registered.

An easement where the servient tenement is Old System land cannot be registered under the Real Property Act 1900. The easement may be registered in the General Register of Deeds. See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [140.300(Ii)].

(F) A writ must be noted in the Encumbrances, or the Court must consent to the transfer, or the writ must be removed.

(G) The full name of the transferee must be stated and must be identical to the name of the registered proprietor of the dominant tenement as shown on the Register.

For a transfer granting an easement in gross the transferee must be a statutory authority or a prescribed authority under s88A Conveyancing Act 1919.

Where the dominant tenement is Old System land the reference to the transferee must be amplified to read '... or such other owner of an estate in fee simple in the dominant tenement described above', see Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [140.300(Ii)].

(H) The transfer must be executed by the transferor1 and be witnessed, or be executed on their behalf by the following:

  • attorney and witnessed
  • authorised officer and witnessed.

Note  A solicitor, barrister or licensed conveyancer cannot execute on behalf of the transferor.

The transfer must be executed by the transferee1 and be witnessed, or be executed on their behalf by the following:

  • attorney and witnessed
  • authorised officer and witnessed
  • solicitor or barrister
  • licensed conveyancer.

1 Where the transferor or transferee is the Owners Corporation of a Strata scheme, execution must take the form as set out in Strata Schemes Approved Form 23 (PDF 128 KB). The following certificates are also required:

  • Strata Schemes Approved Form 14 (PDF 8 KB) where the Owners Corporation benefits from the dealing or
  • Strata Schemes Approved Form 13 (PDF 23 KB) where the Owners Corporation is burdened by the dealing and
  • Strata Schemes Approved Form 10 (PDF 8 KB) where the initial period is not shown as expired on the common property title.

1 Where the transferor or transferee is the Association of a Community, Precinct or Neighbourhood scheme, execution must take the form as set out in Community Title Schemes Approved Form 18. A certificate as in Community Title Schemes Approved Form 21 is also required.

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.

Note  A transfer granting an easement in gross must be executed by:

  • an authorised officer of the statutory authority gaining the benefit of the easement. The capacity of the officer must be stated and the execution must be witnessed; or
  • a solicitor acting for the statutory authority gaining the benefit of the easement.

See execution requirements for companies, witnesses etc. pages

 

Staff processing information

A plan annexed to a transfer lodged by a private party must be approved by an Officer from Folio Management Section before accepting the transfer for lodgment.

The dealing must be treated as a multiple instrument where there is more than one servient tenement title or dominant tenement title and those titles are held by different registered proprietors.

Refer to SM99 except for the following.

Refer to SD31

An easement involving:

  • an Aboriginal Association or corporation
  • the NSW/Local Aboriginal Land Council.

Refer to Legal through the Senior Examining Officer

A transfer granting easement:

  • involving a chargee in possession granting an easement
  • with unusual features
  • pursuant to s88K Conveyancing Act 1919 (Order of Court).