Extinguishing An Easement In NSW

Extinguishing An Easement In NSW

Extingushing An Easement In NSW

An easement can be extinguished according to the laws in New South Wales, Australia. This can be done through various methods such as agreement, abandonment, or court order. However, it is important to seek legal advice before taking any action.

Find out more about how to extinguish easements in NSW and under what conditions the court will agree to your request. When looking to extinguish your easement, you must understand the nature of the restriction attached to your land. The applicant must address specific criteria before it can be modified or extinguished. Let’s take a closer look.

What Is An Easement?

Easements give a person a legal and specific right to access a section of land they do not own. The purpose could include draining water, sewerage or access goods; under these circumstances, they are permitted to cross another person’s property. 

Easements can come in several different forms. Whether it be a shared driveway, telephone line, swinging crane or a section of the plot, it can significantly impact what you can do with your property. The contract grants access rights but may also partially restrict the owner from using the easement’s section.

The land that has access to an easement on another property is called the dominant tenement, and the land burdened by the easement is called the servient tenement. 

Easements are attached to the land title and will be transferred to the following proprietor if the property is sold. They should be included in the property title, except statutory easements, which are easements for telecommunications, sewerage and electricity.

An easement is sometimes created to favour a local council or statutory body. In this case, there is no dominant tenement, and the easement is known as an “easement in gross”. A burdened property will still exist.

Legislation that manages easements is the Real Property Act 1900 and the Conveyancing Act 1919.

Types Of Easements

1. Right Of Way

Right-of-way easements allow a person to access their land by using a shared driveway of a neighbour. It allows the person access to their landlocked property, which would not have been possible without the use of the easement, in this case, the shared road.

2. Service Easements

Service easements are used when a portion of land provides a service to another property, such as telephone lines, water pipes or power lines.

3. Easements of Light And Air

This easement is created to restrict the construction of walls or structures which may block another party’s access to air and light.

How Are Easements Created?

There are two ways to create easements on your property in New South Wales; submit an application form section 88B of the Conveyancing Act or a granting easement transfer form.

The NSW Land Registry Service manages all applications and can grant an express registration.

1. Complete A Section 88B Form

Section 88B of the Conveyancing Act details the forms required to create an easement, profit å Prendre or restriction on the use of lands. It describes the types of easements and restrictions that can burden a property. It also specifies conditions on how it can be modified or fully or partially extinguished and all terms and conditions. The application will need to include a deposited plans approval form.

2. Transfer Granting Easements

An easement can also be created by obtaining a transfer granting easement form. It is an agreement that states that compensation is to be paid to the servient tenement for allowing the restriction. The applicant must include the contract with the submitted application form.

3. Provision Of Easements By The Court

Under the Conveyancing Act 1919, the Supreme Court and the Land and Environment Court are also permitted to create and modify easement orders as long as specific requirements are satisfied.

The court can make an order to create an easement over land for the use or benefit of an adjacent property only if :

  • An applicant has reasonably attempted to obtain an easement but has been denied.
  • An easement is necessary, and more viable alternatives have already been exhausted.
  • An easement may be granted when proved that the easement is required for more effective use or development of other lands.
  • The owner of the burdened land must receive adequate compensation for any loss or damage imposed due to the easement.
  • A court must also consider whether the restriction aligns with the public interest.

The court must specify the nature and terms of the easement in the order.

What Is A Profit Å Prendre?

Profits å prendre are similar to an easement in that the rights are similar, but instead of access to land, it gives someone the right to remove something from the land which belongs to someone else. A profit å prendre permits a person to take something off the land such as soil, timber or mineral reserves. It can also be used to provide a right of pasture for grazing.

How Do You Cancel Or Extinguish An Easement?

Restrictive covenants and easements can affect what you can do with your property. Extinguishing or removing an existing easement may offer increased flexibility and freedom in using your land, which may also increase its value if you look to sell in the future.

If you are the registered proprietor of the land, there are three ways that you can remove an easement, profit å prendre or restrictive covenant. 

The restriction’s nature and circumstances will help determine the most suitable alternative. 

The requirements for cancelling or extinguishing include:

  • There must be references to the title stated for both the dominant and servient tenements
  • The easements’ registered number and nature must be provided
  • The applicant must be the dominant tenement or the registered proprietor of the land
  • The applicant’s full name must be stated and must exactly match that shown on the Torrens title register
  • The dominant and servient tenements must agree to modify or extinguish the agreement
  • Before someone can cancel an easement, permission must be obtained from the dominant tenement, any lessee or mortgagee, and the easement proprietor
  • The dealings by the applicant must be witnessed by an authorised officer and attorney

Application To The Registrar General (Obsolete Restrictive Covenant)

Under the Real Property Act 1900, applications to cancel an easement must be made to the Registrar General. 

A restrictive covenant may be extinguished if :

  • It relates to structures, building materials or fencing which will lose value after 12 years.

Application To The Registrar General (Other Restrictive Covenants)

A covenant may be extinguished if:

  • The time limit has expired
  • The covenant does not affect the land
  • No land benefits from the covenant
  • The covenant was created before 1920
  • It has no application or practical value

Restrictive Covenants – What Are They?

Restrictive covenants also act as an encumbrance on land. It prohibits how the land is used. For example, it may restrict something you can’t do, such as raising livestock or renovating the structure. It places limits on how the property’s owner can use the land. As well as things that can not be done, there may also be details on what must be done, which is common with rental properties.

Application To The Supreme Court

Under the Conveyancing Act legislation, when land is subject to an easement, profit å Prendre or covenant, the court can modify or extinguish the restriction as long as it satisfies one of the following; abandonment, obsoleteness or potential injury. 

The cancellation will be noted in the general register of deeds.

Abandoned Easements

Under the Real Property Act, the Registrar General may cancel an easement and consider it abandoned if it hasn’t been used for at least 20 years. Abandonment can also occur if the easement is no longer accessible due to buildings or other obstructions. The applicant must include a sketch and declaration from a registered surveyor with their application.

Before cancelling an easement, the Registrar General must provide a notice in writing to anyone receiving benefit from it and consider any recent submissions made within the last month.

If the dominant tenement owner states that they are no longer using the easement, it may be considered abandoned.

The applicant must include details of any litigation which may have occurred due to the land restrictions. Also, a declaration providing as much detail as possible about the circumstances surrounding the abandonment, such as the date when it ceased to be used, structures recently erected which interfere with usage, and any other relevant matters.

Obsolete

The original purpose of the easement has now become obsolete and can no longer fulfil its original intent. The continued existence would impede the user, and reasonable land use is impossible without the easement’s modification or cancellation. The covenant or easement now hinders land use and offers no practical benefit to the persons entitled to the easement.

Potential or Substantial Injury

For an easement to be extinguished or modified, it must be proved that it would not substantially injure the persons entitled to the covenant or easement. For example, removal or a proposed modification may not substantially injure parties if it is rendered obsolete or no longer has a practical utility. 

Summary

Easements can come in several different forms. Whether it be a shared driveway, telephone line, swinging crane or a section of the plot, it can significantly impact what you can do with your property. Anyone considering purchasing land in New South Wales must know of any easements or restrictive covenants attached to the property. The registered proprietor must understand the nature and terms of the easement before taking steps to extinguish it.

If you are the land’s registered owner, there are three ways to remove or partially extinguish the restriction. An application can be made to the Registrar General, or the court can modify or extinguish the restriction as long as it satisfies one of the following; abandonment, obsoleteness or potential injury.

Under the Conveyancing Act 1919, the Supreme Court and the Land and Environment Court are also permitted to create and modify easement orders as long as specific requirements are satisfied.

Property law is complex. And the cancellation of easements should only be considered after seeking expert legal advice.

FAQs

1. How Do You Cancel An Easement In NSW?

The nature of the restriction and individual circumstances will help determine the most suitable alternative for the applicant.

When land is subject to an easement, profit å prendre or covenant, the court can modify or extinguish the restriction as long as it satisfies one of the following; abandonment, obsoleteness or potential injury.

If the dominant owner states that they will no longer use the easement under the Real Property Act 1900, the Registrar General may cancel an easement and consider it abandoned if it hasn’t been used for at least 20 years. 

For easements to be removed or modified, it must be proved that they would not substantially injure the persons entitled to benefit from the covenant or easement.

The covenant or easement now hinders the land use and offers no practical benefit to the persons entitled to the easement, and the purpose has become obsolete.

The applicant must be the dominant tenement or the registered owner of the land.

The cancellation will be noted in the general register of deeds.

2. How Do I Enforce An Easement In NSW?

Easements give a person a legal and specific right to access a section of land they do not own. An easement is attached to the land and included in the property’s title. If a person interferes with your land access rights, you may need to apply to the court to seek compensation for damages or file an injunction to commence legal proceedings.

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