In New South Wales the Conveyancing Act 1919 (“the Act”) is the legislation which expresses and regulates the essential law relating generally to land in NSW. Other legislation, such as The Real Property Act 1900 and the acts relating to Strata Titles and Crown Lands, cover specific kinds of title. This article will explain the provisions of the Conveyancing Act 1919 which apply when owners of land, or public authorities, wish to create or maintain rights and obligations in addition to the bare fact of ownership of the land. The origins of many of these rights and obligations date back to the English Common Law and have been adopted into NSW law by legislation.
The words, Easement, Covenant and Restriction are used to describe the forms of these rights and obligations, and to assist in understanding exactly what is meant to be applied to the title to particular land, the Act provides for a Short Title, and in respect of each Short Title, a longer paragraph, setting out the terms that are implied when the Short Title is used in a document. Of course, if these statutory definitions do not adequately cover what is intended by the parties, then they may use other words in their individual instrument, tailoring it to suit their requirements, and creating their restrictions in clear and appropriate terms.
Every Easement, Covenant and Restriction restricts the rights of an owner of land, and increases the rights of another owner, or a public authority. The party whose rights are increased is referred to as the “dominant tenement” and the other party is the “servient tenement”. The creation of these rights is in the nature of a contract, in that an agreement is made between the owners as to matters such as the location, dimensions and maintenance of the land affected, as to payment for any rights gained, and other factors.
The definitions in the Act are not exhaustive, but are intended to provide uniformity, make drafting of instruments creating easements easier, and give clarity to the meaning the parties wish to convey.
EASEMENTS IN GROSS – SECTION 88A OF THE ACT
These are easements without a dominant tenement that are created in favour of a public authority, such as the local Council or Electricity or Gas Authority, or the authority that provides water sewerage and drainage services to the land. The long meanings of Short Forms used to create restrictions under Section 88A are set out in Schedule 4A of the Act, and section 88A provides that the words may be varied by agreement to suit the particular case. The kinds of easement defined are:
Part 1 – Right of carriage way – the right to travel over the land using vehicles
Part 2 – Right of footway – the right to walk over the land
Part 3 – Easement to drain water – the right to drain across and through servient tenement over the surface or through pipes
Part 4 – Easement to drain sewage – the to drain sewage and other waste material and fluid across and through the land Part 5 – Easement for repairs
Part 5 – Easement for repairs –the right to enter the land to repair any pipes or other infrastructure
Part 6 – Easement for drainage of sewage – the right to drain sewage, sullage and other fluid wastes in pipes
Part 7 – Easement for drainage of water – the right to drain water from any natural source
Part 8 – Easement for electricity purposes – the right to transmit electricity
Part 9 – Easement for services – the right to provide domestic services supplied by the relevant authority
Part 10 – Easement for water supply – the right to run water in pipes through the land
Part 11 – Right of access – the right to pass across the land for the purpose of exercising or performing any of its powers, authorities, duties or functions
The long form of each of these Easements also provides for the authority to be able to do anything on the land which is reasonably necessary or ancillary to the primary purpose of the easement.
EASEMENTS AFFECTING ADJOINING LANDS – SECTION 181A OF THE ACT
The construction of expressions used to create easements in dealings between the owners of land is provided for in Section 181A of the Act, and generally the scheme is the same as that used in relation to the meaning of Easements of Gross. Schedule 8 sets out their Short Forms and long meanings. The kinds of easement defined are:
Part 1 – Right of carriage way – the right to travel over the land using vehicles
Part 2 – Right of footway – the right to walk over the land
Part 3 – Easement to drain water – the right to drain across and through servient tenement over the surface or through pipes
Part 4 – Easement to drain sewage – the to drain sewage and other waste material and fluid across and through the land Part 5 – Easement for repairs
Part 5 – Easement for repairs –the right to enter the land to repair any pipes or other infrastructure
Part 6 – Easement for batter – the right to construct and maintain whatever batter or embankment is reasonably necessary to support the surface or subsurface of the lot benefited, or any structure or works on that lot
Part 7 – Easement for drainage of sewage the right to drain sewage, sullage and other fluid wastes in pipes
Part 8 – Easement for drainage of water – the right to drain water from any natural source
Part 9 – Easement for electricity purposes – the right to transmit electricity
Part 10 – Easement for overhang – the right to keep a structure that overhangs the servient tenement
Part 11 – Easement for services – the right to have domestic services
Part 12 – Easement for water supply – the right to run water in pipes through the land
Part 13 – Easement to permit encroaching structure to remain – the right to keep a structure that encroaches on the servient tenement
Part 14 – Right of access – the right to pass across the land to get to or from the dominant tenement
Part 15 – Easement for removal of support – the right to remove support provided
Any person wishing to create an easement, or owner of land who is asked to grant an Easement over his or her land, or any person intending to purchase land that is affected by an Easement, should carefully consider the long descriptions of the particular easement in Schedule 4A or Schedule 8 to ensure a thorough understanding of how the Easement will affect their use and enjoyment of the relevant land.
We hope you found the information in this article valuable but keep in mind it is no substitute for legal advice. If you have received a letter about a proposed easement on your property and need further legal assistance, please refer to our list of Recommended Lawyers, where we have a good network of lawyers who can help you should you need it. Adam Ahmed is an Australian international tax lawyer. Adam has over a decade of experience working at 3 of the big 4 accounting firms and one of the top tax law firms in Australia. He is currently the managing director of Adam Ahmed & Co. This article is reproduced from Adam Ahmed & Co.
