Easements

Easements which burden or benefit lots or common property may be created, released and varied in the same manner as other Real Property land. As lots in a strata plan are limited in height and depth consideration must be given as to whether the easement should burden lots and or common property.

The site of the easement must be defined in a deposited plan or a plan annexed to a Real Property Act dealing. In most cases the site may be defined by a compiled plan. When the easement site contains angles and steps it will be acceptable to use prolongations of and perpendicular offsets from the structures shown in the strata plan to define the site. Any concerns regarding acceptability of a compiled plan should be addressed to the Plan and Title Advisor at plan-info@lpi.nsw.gov.au

When the easement is relating to the common property title the owners corporation must consent by providing the relevant documents as set out below.

Easements burdening common property

Creation of an easement

A Transfer which purports to create an easement which burdens common property must be executed by the owners corporation as transferor. The execution should be as in Approved Form 13 which certifies the passing of a special resolution.

A plan and section 88B instrument which purports to create an easement which burdens common property must be consented to by the owners corporation. The execution should be as in Approved Form 13 which certifies the passing of a special resolution. This certificate should be provided on the administration sheet(s) of the plan in a signatures panel. The final sheet of the section 88B instrument should bear the seal of the owners corporation together with an attestation as in Approved Form 23.

If it is not recorded on the common property title that the initial period for the scheme has expired a completed certificate from the owners corporation as in Approved Form 10 must be provided. This certificate should accompany the dealing or be provided on the administration sheet of a plan.

Release or extinguishment of an easement

A Transfer which purports to release an easement which burdens common property must be accepted by the owners corporation as transferee. The acceptance should be as in Approved Form 14 which certifies the passing of an ordinary resolution.

A cancellation or extinguishment of easement which burdens common property does not require consent of the owners corporation.

A plan and section 88B instrument which purports to release an easement over common property does not require consent of the owners corporation.

Easements benefiting common property

Creation of an easement

A Transfer which purports to create an easement which benefits common property must be accepted by the owners corporation as transferee. The acceptance should be as in Approved Form 14 which certifies the passing of an ordinary resolution.

A plan and section 88B instrument which purports to create an easement which benefits common property does not require the consent of the owners corporation.

Release or extinguishment of an easement

A Transfer which purports to release an easement which benefits common property must be executed by the owners corporation as transferor. The execution should be as in Approved Form 13 which certifies the passing of a special resolution.

A cancellation or extinguishment of easement which benefits common property must be executed by the owners corporation as dominant tenement. The execution should be as in Approved Form 13 which certifies the passing of a special resolution.

A plan and section 88B instrument which purports to release an easement which benefits common property must be consented to by the owners corporation. The execution should be as in Approved Form 13  which certifies the passing of a special resolution. This certificate should be provided on the administration sheet(s) of the plan in a signatures panel. The final sheet of the section 88B instrument should bear the seal of the owners corporation together with an attestation as in Approved form 23.

If it is not recorded on the common property title that the initial period for the scheme has expired a completed certificate from the owners corporation as in Approved Form 10 must be provided. This certificate should accompany the dealing or provided on the administration sheet of a plan.

Variation of an easement

A variation of an easement which burdens or benefits common property must be executed by the owners corporation. The execution should be as in Approved Form 13 which certifies the passing of a special resolution. This certificate should accompany the dealing.