General principles

Definitions

Easement

A right applying to land. It enables a parcel to have the use of other land in different ownership, for a specific non-exclusive purpose. Without the easement the use would constitute a trespass or nuisance. Easements fall into two categories:

  • Private easements are made between the owners of two or more parcels of land. The land having the benefit of the easement is known as the dominant tenement while the land having the burden of the easement is the servient tenement.
  • Easements in gross are created in favour of the Crown or a public or local authority constituted by an Act of Parliament. An easement in gross does not have a dominant tenement and the right to release, vary or modify them is vested in the creating authority.

Restriction on use of land (restrictive covenant)

An agreement between two or more parties that something will not be done with the land. The benefit of the restriction may be adjoining land, nearby land or the council. It is negative (restrictive) in nature and may be created to :

  • protect a residential amenity e.g. a view
  • preserve the environment e.g. preventing the lopping of trees or restricting where buildings can be erected
  • restrict undesirable development and preserve the character of the neighbourhood e.g. limiting the height of buildings and/or the material of construction and/or fencing type.

Profit à Prendre

A right to use the produce of a parcel of land in the ownership of another person eg harvesting and removing produce (crop or livestock), taking soil, felling and removing timber etc.

Positive Covenant

A condition imposed by, or for the benefit of a prescribed authority requiring the maintenance and/or repair of land e.g. to maintain a building and its foundations to ensure the safe working of a railway passing below it, or to erect a habitable dwelling upon the land within a specified period of time. The Positive Covenant must be in terms that directly require the owner of the land to do some positive action.

Duty of Care in Relation to the 'Right of Support for Land'

Following the commencement, on 1 August 2000, of the Conveyancing Amendment (Law of Support) Act 2000, s.177(1-4) Conveyancing Act 1919 provides that, for the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land in its natural state. This simply means that a person cannot do anything in relation to land which would remove the support afforded to any other land (the supported land). This "Duty of care" may be excluded or modified by express agreement between the person on whom the duty lies and the person to whom the duty is owed.

Requirements for the creation of easements

An easement (which is not an easement in gross) must have clearly defined dominant and servient tenements in separate ownerships. There are two statutory exceptions to this rule:

  • s.88B(3)(c)(ii) Conveyancing Act 1919 enables easements to be created by the registration of a plan even though the land benefited and burdened is in the one ownership.
  • s.47(7) Real Property Act 1900 provides that where an easement is created on or after 1 July 1970, the acquiring of both tenements does not automatically extinguish the easement.

The dominant tenement of an easement is carried with the land, ie when the land is transferred the new occupier acquires the benefit.

An easement in gross can be created (without a dominant tenement) where the easement is:

  • in favour of a Prescribed Authority being the State or a statutory body recognised in s.88A(1),(1A)&(1B) Conveyancing Act 1919
  • in favour of the Commonwealth or a Commonwealth Authority
  • in favour of a licensee under s.61(2) Pipelines Act 1967 or
  • an easement for public access created under s.56(2) Crown Lands Act 1989.

Proposed easement plans

A plan defining the site of a 'proposed' easement, i.e. one which is intended to be created at a date subsequent to registration of the plan, may be lodged and registered in LPI. The proposed easement will then be created on registration of an appropriate Transfer Creating Easement dealing (or similar). A proposed easement plan will not be accompanied by a s.88B instrument, will denote the site as 'Proposed easement for …………....' and will not bear any signatures (as the affected parties will sign the subsequently lodged creating instrument).

No notification of the easement will be entered in the Second Schedule of the affected title(s), however, reference to 'DP........ Proposed Easement' will be shown in the Notations field. This notation will be removed from the title upon receipt of an appropriate letter from the registered proprietor(s) to this effect. The letter should be addressed to the Manager, Plan Review, Titling and Registry Services, LPI.

Easement plans prepared by government and prescribed authorities

Easement plans prepared by government and prescribed authorities should comply with the general requirements for easements. Exceptions will be for:

  • 'Term Easement Plans', where the term of the easement does not exceed that of the lease, or
  • Easements over existing centre line of poles, as required by Electricity Authorities.

Plans prepared for these purposes must be signed by a registered surveyor.