Common terms and situations involving easements

The following information relates to Torrens Title land unless otherwise stated.

Affecting note

An easement notification entered on the servient tenement title (land burdened by the easement).

Ancillary rights

Rights implicitly granted, unless expressly stated otherwise, to the proprietor of land gaining the benefit of an easement to do what is necessary for quiet enjoyment of that easement, eg the right to enter and repair or clear the easement site.

Appurtenant note

An easement notification entered on the dominant tenement title (land benefitting from the easement).

Cancellation of easement

Removal of an easement, usually by the registered proprietor or the dominant tenement.

Caveat noted on the Register

A standard form of caveat noted on the servient tenement title will prevent registration of an easement, except for a resumption of easement or cross-easements created pursuant to s88BB or s181B Conveyancing Act 1919 or s48 Real Property Act 1900.

Cross-easements

Reciprocal easements for support related to a shared wall between lots known as a "party wall" or "proposed party wall".

Until its repeal on 1.8.1996, s181B Conveyancing Act 1919 provided for cross-easements to be created by certain transfers or a non-fiduciary transmission application where a plan registered showed a "party wall" between the lots, ie a wall shared by both properties on either side of the lot boundary.  The cross-easements are recorded on the affected titles only when:

  • the transfer or non-fiduciary transmission application dated after 1.1.1931 (enactment of s181B Conveyancing Act 1919) affects a folio of the Register with a Note (NB) referring to s181B Conveyancing Act 1919 or
  • a Request form 11R to note the cross-easements is lodged by the parties on either side of the wall.

From 1.8.1996, titles issued from a Deposited plan that shows a boundary of a lot as a "party wall", have the cross-easement automatically recorded on the titles for the lots on either side of the wall, see s88BB Conveyancing Act 1919.  Section 181B Conveyancing Act 1919does not apply to plans lodged after 1.8.1996.

Pursuant to s48(1A) Real Property Act 1900 where a Deposited plan registered after 1.8.1996 shows a boundary between lots as a "proposed party wall", the registered proprietors of the affected lots may request that thecross-easementsbe recorded on the folios of the Register.

See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [140.600].

Dominant tenement

The land benefiting from the easement.  The land may be Old System.

Easement

A right annexed to land to utilise other land of different ownership in a particular manner not involving the taking of its produce or soil, nor preventing the owner of the other land from utilising that land in a particular manner.  The easement must be of a kind that is recognised by law.

Easement in gross

An easement not having a dominant tenement, created by and benefiting a statutory or prescribed authority.  See s88A Conveyancing Act 1919; clause 47 Conveyancing (General) Regulation 1998 Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [140.750].

Express release of easement

Removal of an easement based upon agreement between the parties.

Extinguishment of easement

The removal of an easement by Order of the Supreme Court.

Grant an easement

Allow one's land to be burdened by an easement.

Licence

An authority to do something that otherwise would be wrongful, eg enter land in a manner that otherwise would be trespass.  A licence will only be registered if it is drawn in the form of a recognised easement.

Merger of tenements

An easement is not automatically extinguished if the dominant and servient tenements pass into the same ownership.  The registered proprietor must apply to have the easement cancelled on the grounds of the merger of the tenements. 

Note  From 1.1.1996 an easement is removed if the dominant and servient tenements are consolidated into a single parcel of land by a Deposited plan.

Modification of easement

An alteration to the terms of an easement by Order of the Supreme Court.

Negative easement

An easement that prevents an owner from making full use of the land cannot be registered.  Such an easement should be redrawn as a restriction on the use of land.

Positive covenant for maintenance/repair

s88BA Conveyancing Act 1919 provides for the creation of a positive covenant for maintenance and/or repair of an easement site by the parties to the easement.  The positive covenant may be created by:

  • including it in the terms of the easement on creation.  A separate covenant notification is not entered
  • including it with a transfer of the land or
  • setting out the terms of the positive covenant in a deed of agreement between the parties lodged with a Request form 11R.

The positive covenant may be modified, varied, extinguished or released.

Reserve an easement

Create an easement burdening land being disposed of for the benefit of other land being held.

Resumption of dominant tenement

The resuming authority also acquires the easement unless the Government Gazette notice of resumption states otherwise, in which case the easement will be removed.

Resumption of easement

Aan easement may be created by a statutory authority.

Resumption of servient tenement

The easement is removed unless:

  • it is specifically preserved by the Government Gazette notice of resumption or
  • the resumption is pursuant to the Public Roads Act 1902 and was gazetted prior to 18.10.1968.

Servient tenement

The land burdened by the easement.  The land must be held under the Real Property Act 1900.

Transfer of easement

Changes the statutory or prescribed authority having the benefit of an easement in gross.

Union of tenements in an easement

Where both tenements pass to the same proprietor there is no automatic cancellation of the easement.  This also applies to an easement in gross where the statutory authority or prescribed authority having the benefit of the easement becomes the proprietor of the servient tenement.  A Cancellation of Easement form 20ECE to cancel the easement may be lodged.

Variation of easement

The terms or site of an easement may be altered by the parties to an easement.

Vesting of easement

Changes the statutory or prescribed authority having the benefit of an easement in gross.