Easements affecting Torrens Title land may be created by:
- an express grant of easement contained in a transfer, mortgage, lease or charge, see s56(4) Real Property Act 1900
- registration of a plan of subdivision, Strata plan, Community Title plan or easement plan; see s88B Conveyancing Act 1919
- resumption or acquisition or
- an Order of Court, see s88K Conveyancing Act 1919.
Easements may be created where the dominant tenement and the servient tenement areReal Property Act land and are held by the same registered proprietor, see s46A Real Property Act 1900. A Transfer granting easement over own land, form 01TO, may be used where the easement affects all of the land in the servient tenement title or comprises a site with boundaries parallel or perpendicular to the title boundaries. A full plan of survey and s88B instrument must be lodged in all other instances.
Easements may be created between Torrens Title land and Old System land. If the servient tenement is Torrens Title land and the dominant tenement is Old System land the easement may be registered on the folio for the servient tenement and may be registered in the General Register of Deeds. If the servient tenement is Old System land the easement may only be registered in the General Register of Deeds. See Baalman and Wells, Land Titles Office Practice, Lawbook Co. 2001 [140.300].
Cross-easements may be:
- created pursuant to s48 Real Property Act 1900 by a request from the parties affected on both sides of a 'party wall' shown in a registered plan lodged before 1.8.1996
- created pursuant to s48(1A)Real Property Act 1900 by a request from the parties affected on both sides of a 'proposed party wall' shown in a Deposited plan registered after 1.8.1996
- automatically created pursuant to s88BB Conveyancing Act 1919 where a plan lodged on or after 1.8.1996 refers to a 'party wall'
- recorded on the folios of the Register pursuant to the former s181B Conveyancing Act 1919 where certain transfers or transmission applications are registered and where a registered plan lodged before 1.8.1996 refers to a 'party wall'.
An easement noted on the Register has no effect on the registration of dealings. It does not have to be noted in the Encumbrances, nor is the consent of the party benefiting from the easement required.
An easement may be:
- modified by an Order of the Supreme Court - see Baalman and Wells, Land Titles Office Practice, Lawbook Co. 2001 [140.700]
- varied as regards the terms or site of the easement
- removed by:
- agreement between the parties
- application following the happening of an agreed event
- the registered proprietor of the dominant tenement
- the registered proprietor of the servient tenement due to abandonment pursuant to s49 Real Property Act 1900
- an Order of Court
- a s88B instrument lodged with a deposited plan or
- consolidation of the dominant and servient tenements into a single parcel of land by a deposited plan lodged after 1.8.1996, see s49(5),(6) Real Property Act 1900.
Common forms of easement
Standard form of easement
Easement in Gross
No dominant tenement title. The body gaining the benefit of the easement must be a statutory authority or prescribed corporation, see s88A Conveyancing Act 1919.
Easement over several lots
The easement may consist of:
- dominant tenement A and servient tenements B to E inclusive or
- dominant tenement A and servient tenements B to E inclusive, dominant tenement B and servient tenements C to E inclusive, dominant tenement C and servient tenements D and E, and dominant tenement D and servient tenement E or
- dominant tenement A and servient tenement B, dominant tenement B and servient tenement C, dominant tenement C and servient tenement D, and dominant tenement D and servient tenement E or
- any combination of these.
Separate instruments are required to create the easements between each of the lots in different ownership.
Granting an easement
X owns lots A and B. X transfers lot A to Y, retaining lot B, and grants Y the benefit of an easement burdening lot B.
Reserving an easement
X owns lots A and B. X transfers lot A to Y retaining lot B and reserves an easement burdening lot A and benefiting lot B