The law of easements is quite complex and frequently litigated.

An easement is a legal right that is attached to land (known as the dominant tenement or benefited lot) to use other land (known as the servient tenement or burdened lot) for a non-exclusive purpose and as described in the instrument or plan creating the right. Common examples are easements to drain water, easements for access and rights of carriageway.

Being attached to the land means that if the registered proprietor of the benefited lot or the burdened lot transfers their lot, the successor in title will take the title subject to the terms of the easement. In the absence of the created easement, the use may constitute a nuisance or a trespass.

If an easement is created in favour of a statutory body or local council or the Crown, there may be no dominant tenement and the easement will be described as an “easement in gross”. There will, however, be a servient tenement, being the lot burdened by the easement in gross.

New South Wales practitioners often refer to s 88B of the Conveyancing Act 1919 (NSW) when talking about easements. In Victoria, easements are primarily created, varied or removed pursuant to either the Subdivision Act 1988 (Vic) or the Transfer of Land Act 1958 (Vic), while in Queensland, the relevant legislation is Pt 6 Div 4 of the Land Title Act 1994 (Qld).

In Western Australia, easements are now generally created by a deposited plan under s 167 of the Planning and Development Act 2005 (WA), under Pt IVA of the Transfer of Land Act 1893 (WA) or under s 5D of the Strata Titles Act 1985 (WA), although the traditional methods (by deed or by reservation in a Transfer instrument) are still available.

In South Australia, easements may be created by a grant of easement under ss 89 or 89A and 96 of the Real Property Act 1886 (SA), or by deposit of a plan of division under s 90 or under Pt 19AB of the Real Property Act 1886 (SA). Easements may also be created by reservation in a transfer of freehold land or the grant of a leasehold estate in land reserving the easement to the transferor or lessor: s 96AA of the Real Property Act 1886 (SA).

The key legislation in Tasmania is Pt VI Div 9 of the Land Titles Act 1980 (Tas) and Pt VIA of the Conveyancing and Law of Property Act 1884 (Tas).

In the Northern Territory, the relevant statutory provisions are located in Pt 9 Div 2 of the Law of Property Act (NT) and Pt 6 Div 4 of the Land Title Act (NT).

In the Australian Capital Territory (ACT), the relevant legislation is Div 10.3B of the Land Titles Act 1925 (ACT). In the context of unit titles, the subject of easements is also addressed in Pts 2 and 3 of the Land Titles (Unit Titles) Act 1970 (ACT), in Div 4.2 of Pt 4 of the Unit Titles Act 2001 (ACT), and in various parts of the Unit Titles (Management) Act 2011 (ACT), such as ss 20 and 21(2)(b) . In the context of community titles, statutory easements are provided for in Pt 10 of the Community Title Act 2001 (ACT).

A restrictive covenant is a covenant, or promise, by one property owner in favour of another (or several) parties to not use the land purchased for a specified purpose or in a specified manner. These covenants must be restrictive or negative in nature and cannot impose positive obligations on the owner of the lot burdened. Restrictive covenants are also called "restrictions on the use of land".

In New South Wales, s 88B of the Conveyancing Act 1919 (NSW) is relevant here.

In Victoria, practitioners will need to consider s 88 of the Transfer of Land Act 1958 (Vic), s 84 of the Property Law Act 1958 (Vic), and ss 6 and 60 of the Planning and Environment Act 1987 (Vic).

In Queensland, a restriction on a use of land, not in the nature of an easement, is not capable of being registered: s 4 of the Property Law Act 1974 (Qld). This prohibits the registration of covenants contained in an easement that restrict registered owners from exercising a right that they would otherwise be entitled to exercise as owner of that land.

In Western Australia, to be registered, covenants must be negative (ie, restrictive) in nature (except that s 15 of the Land Administration Act 1997 (WA) permits the registration of positive covenants over Crown land (including freehold land in respect of which there was an agreement with the Minister for Lands before the Crown land was transferred to the freehold owner)).

In South Australia, there is no specific procedure for registration of restrictive covenants. However, covenants restricting the use of land are sometimes incorporated as covenants in encumbrances registered under Pt 12 of the Real Property Act 1886 (SA) or in land management agreements pursuant to s 57 or s 57A of the Development Act 1993 (SA).

The key legislation in Tasmania on registering restrictive covenants is Pt VI Div 8 of the Land Titles Act 1980 (Tas).

In the Northern Territory, a restrictive covenant that can be registered on land includes “an obligation (whether positive or negative) in respect to the use, ownership or maintenance of particular land (servient land) that is created for the benefit of other land (dominant land)”. The relevant statutory provisions are located in Pt 9 Div 2 of the Law of Property Act (NT) and Pt 6 Div 4 of the Land Title Act (NT).

In the ACT, the Land Titles Act 1925 (ACT) does not make specific provision for the registration of restrictive covenants. However, the Registrar-General will accept for lodgment a transfer that has a restrictive covenant attached.

Public positive covenants

A public positive covenant benefits a statutory body or local council. Public positive covenants are not available to benefit private owners. Under a public positive covenant, the owner of land has a condition imposed to carry out a specified act (for example, clean out a storm water drain on the property or build a house on the land within a certain time frame). Private owners can benefit from positive covenants that refer to obligations to repair and maintain (that are not public positive covenants) under s 88BA of the Conveyancing Act 1919 (NSW).

There is no equivalent provision in Victoria. Positive obligations may, however, be imposed by the local council pursuant to s 173 of the Planning and Environment Act 1987 (Vic).

In Queensland, an “easement in gross” may be granted to public utility providers (ie, a statutory body or local council) for, among other things, drainage or sewerage, water supply, telecommunication facilities or other public utility services: ss 81A and 89 of the Land Title Act 1994 (Qld).

In Western Australia, s 129BA of the Transfer of Land Act 1893 (WA) permits the creation of restrictive covenants for the benefit of a public authority or the relevant local government. The case of City of Belmont v SaldanhaCity of Belmont v Saldanha examined rules for applying the benefit of an easement in gross, particularly the extent to which such an easement can be used by third parties other than the grantee. The case draws attention to the need to clearly express the intention of an easement including the extent of the intended use.

In South Australia, public positive covenants benefiting a statutory body or local council can be registered in the form of land management agreements under ss 57 or 57A of the Development Act 1993 (SA).

There is no equivalent provision to repair and maintain in Tasmania. Positive obligations may, however, be imposed with approval of the local council pursuant to Pt V of the Land Use Planning and Approvals Act 1993 (Tas).

In the Northern Territory, under s 155 of the Law of Property Act (NT), easements in gross may be created in favour of any person, however covenants in gross may only be created in favour of the territory, a local government body, a statutory corporation or a prescribed person: s 168 of the Law of Property Act (NT).

There is no equivalent provision in the ACT.

Profits a prendre

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

See Positive covenants, restrictions on use and profits a prendre for more information.

Generically, easements and covenants are known as “encumbrances” — being legal interests recorded on a title. Other encumbrances include a mortgage and a lease.

Property practitioners should know how to create, vary and extinguish easements and covenants and how to interpret their terms. Being familiar with the relevant legislation is essential for this purpose as is getting on top of the language and expressions commonly used.

New South Wales

In NSW, easements will generally be created:

• by plan and s 88B instrument. See Deposited Plans Approved Form 10 Section 88B Instrument; or

• by Transfer granting easement (LPI Form 01TG).

Section 88B instrument

Section 88B of the Conveyancing Act 1919 (NSW) deals with the “creation and release of easements, profits à prendre and restrictions on the use of land by plans”.

Practitioners should familiarise themselves with the standard form of s 88B instrument. See Deposited Plans Approved Form 10 Section 88B Instrument. The form has three main parts, set out below.

Part 1: This part describes each easement, profit à prendre, restriction on use of land or positive covenant to be created by the instrument.

Part 1A: This part describes each easement or profit à prendre to be released. Restrictions on use of land and positive covenants are not released via the use of Pt 1A but instead are released or extinguished by the lodgment of separate forms at the LPI.

Part 2: Pt 2 puts into words the terms and conditions of the easements, profit à prendre, restrictions on use of land or positive covenants being created under Pt 1. You do not need to use Pt 2 if the statutory terms for certain easements, profit à prendre, restrictions on use of land or positive covenants are adopted.

Not all Section 88B Instruments will contain all of these parts. Which parts are used will depend on the individual circumstances. For example, you will not always have an easement or profit a prendre to be released. In those circumstances Pt 1A would not be required.

There are a number of easements known as “statutory easements”. These are also known as “short form easements”. These easements do not require Pt 2 of the s 88B instrument to be filled out, unless changes are to be made to the adopted statutory terms. The terms and conditions are deemed to be those set out in Schs 4A and 8 of the Conveyancing Act 1919 (NSW).

Transfer granting easement form

A Transfer granting easement (Form 01TG) is the second way to create an easement. It is done by agreement between the owner of the servient tenement and the owner of the dominant tenement. It applies to Torrens title land. The form also provides for consideration to be paid — that is, the owner of the dominant tenement will pay the owner of the servient tenement an amount of compensation in consideration of granting the easement.

Under the Conveyancing Act 1919 (NSW), there are a number of implied easements that will be created as the context permit. Also, the Supreme Court and the Land and Environment Court have the power to make orders requiring the creation of easements. See Creation.

Victoria

In Victoria, an easement may be created in a number of ways, being:

• by planning permit (see s 23 and s 36 of the Subdivision Act 1988 (Vic));

• by express agreement (see s 45 and s 72 of the Transfer of Land Act 1958 (Vic)). Practitioners should also note the requirements of s 52 and s 53 of the Property Law Act 1958 (Vic) and s 126 of the Instruments Act 1958 (Vic);

• by implication (see s 12(2) of the Subdivision Act 1988 (Vic) and s 98 of the Transfer of Land Act 1958 (Vic)); and

• by prescription (for example the doctrine of lost modern grant).

Express creation of easements in Victoria

In Victoria, most easements will be created by noting the easement on a registered plan of subdivision. Express easements may also be created by granting or reserving the easement in an instrument, such as a deed, between the owner of the dominant land and the owner of the servient land (see s 45 of the Transfer of Land Act 1958 (Vic)). Such an easement may be recorded on the relevant titles by lodging a Plan of Creation, Removal or Variation of Easement (Form 12) form on the Department of Sustainability and Environment (DSE) website (see Transfer of Land (General) Regulations 2004 (Vic)). Easements may also be registered pursuant to s 72 of the Transfer of Land Act 1958 (Vic).

Practitioners should refer to the Land Victoria Lodging Book for lodging requirements on the DSE website.

See Creation.

Queensland

In Queensland, easements are created by:

• a grant of easement pursuant to Pt 6 Div 4 of the Land Title Act 1994 (Qld);

• a resumption of land, under the Acquisition of Land Act 1967 (Qld);

• a court ordering a statutory right of user under the provisions of the Property Law Act 1974 (Qld).

Easements (by grant) are created upon the registration of an instrument of easement, being an Easement (Form 9) form from the Department of Natural Resources, Mines and Energy (DNRME) (see s 82 of the Land Title Act 1994 (Qld)). An easement over part of a lot must be defined by a registered survey plan or explanatory format plan before the Form 9 — Easement can be registered: s 83(1)(a) of the Land Title Act 1994 (Qld). Despite this, an easement is not created on the registration of an easement plan. An easement is created only on the registration of the Form 9 — Easement. In practice, the survey plan defining the easement is lodged first, and the Form 9 — Easement is lodged immediately after.

See Creation.

Western Australia

In Western Australia, the primary means of creating an easement are:

• by registration of a deed;

• by incorporation of the easement in a transfer;

• pursuant to s 167 of the Planning and Development Act 2005 (WA);

• by notation on deposited plans of subdivision under Pt IVA of the Transfer of Land Act 1893 (WA); and

• by notation on survey-strata plans under s 5D of the Strata Titles Act 1985 (WA).

South Australia

In South Australia, an easement may be created in a number of ways, being:

• by express grant of easement under ss 89 or 89A and 96 of the Real Property Act 1886 (SA);

• by reservation in a transfer of freehold land or in the grant of a leasehold estate in land reserving the easement to the transferor or lessor under s 96AA of the Real Property Act 1886 (SA);

• by deposit of a plan of division under s 90 or under Pt 19AB of the Real Property Act 1886 (SA); and

• by prescription (for example the doctrine of lost modern grant).

Express creation of easements in South Australia

In South Australia, many easements will be created by noting the easement on a registered plan of division. Express easements may also be created by granting the easement in an instrument, such as a deed, between the owner of the dominant land and the owner of the servient land. In the case of land under the Real Property Act 1886 (SA), the appropriate form is the Grant of Easement (Form TG) on the Government of South Australia website. It will be necessary for the areas of land affected by the easement to be delineated in a registered survey plan (Filed Plan) and the Form TG will need to refer to that plan in describing the easement being granted.

Practitioners should refer to the Plan Presentation Guidelines on the Land Services Group website for more information.

See Creation.

Tasmania

In Tasmania, the basic ways to create easements are:

• by transfer granting easement under s 105 of the Land Titles Act 1980 (Tas), whether by the registered proprietor or, more rarely, by a lessee;

• in accordance with the statutory code on acquisition of easements by possession under Pt IXB Div 2 of the Land Titles Act 1980 (Tas);

• by schedule of easement to a sealed plan of subdivision under Pt 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas). See s 87 of the Act in particular; and

• by order of the Recorder under s 110 of the Land Titles Act 1980 (Tas).

See Creation.

Northern Territory

In the Northern Territory, easements are created by:

• registering a deed of grant, granting or reserving an easement (s 91(a) of the Land Title Act (NT));

• registering an instrument of easement (s 91(b) of the Land Title Act (NT));

• registering a plan of subdivision, or a plan of consolidation, if the plan and any instrument of easement are lodged together: (s 101 of the Land Title Act (NT));

• the granting of Crown land by the government pursuant to s 61(1) of the Crown Lands Act (NT); and

• a court ordering a statutory right of user under s 164 of the Law of Property Act (NT).

Easements (by grant) are created upon the registration of a duly executed instrument of easement, being either a Creation of Easement in Gross (Form 51) or a Creation of Easement (Form 52) with the Registrar-General at the Northern Territory Land Titles Office (LTO).

Registration of an instrument of easement must, if required by the Registrar-General, include a plan of survey identifying the lot or part of a lot to be benefited by the easement and the lot or part of a lot to be burdened by the easement: s 92(1) of the Land Title Act (NT). In practice, a plan of the survey will need to accompany the relevant form and will need to be produced by a duly licensed surveyor (under the Licensed Surveyors Act (NT)). The Registrar-General reserves the right to obtain the opinion of the adequacy of the survey from the Surveyor-General, in the event he believes the survey is unclear.

Registration of an easement in gross must include a sketch plan identifying the lot or part of a lot to be benefited by the easement and the lot or part of a lot to be burdened by the easement in gross, as well as identify the persons having the benefit of the easement in gross: s 92(2) of the Land Title Act 2000 (NT).

Where a sketch plan is required for the registration of an easement these are generally lodged together with the relevant LTO Form (either a Creation of Easement in Gross (Form 51) or a Creation of Easement (Form 52)).

See Creation.

Australian Capital Territory

In the ACT, land is either classified as “national land” or “Territory land” (both terms are defined in the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth)). In respect of “Territory land”, individual rights to use the land are granted pursuant to Crown leases (issued usually for 99 years, or, in some instances, a shorter period). The Crown lessee’s rights are therefore dependent on the terms of the Crown lease.

In respect of land subject to a Crown lease, an easement may be created:

• at the time a new Crown lease is granted, by reservation in the Crown lease or by a grant of rights in favour of the Crown lessee in the Crown lease; or

• subsequent to the grant of the Crown lease, by deed between the owner of the servient tenement and the owner of the dominant tenement.

If an easement is created in favour of a statutory body, the Territory or the Crown, there will be no dominant tenement and the easement will be described as an "easement in gross".

See Creation.

In New South Wales, easements can be released in several ways including:

• by a Transfer releasing easement (Form 01TR); or

• by the registration of a plan and a section 88B instrument. The release of the easements is contained within Pt 1A of the s 88B instrument.

In Victoria, easements may be removed or modified pursuant to either ss 73 and 73A of the Transfer of Land Act 1958 (Vic) or s 36 of the Subdivision Act 1988 (Vic).

In Queensland, an easement may be wholly or partially extinguished by the registration of a Surrender of Easement (Form 10) form from the DNRME. The owners of both the benefited (dominant tenement) and burdened (servient tenement) lots may together execute the Form 10 — Surrender of Easement. Alternatively, a Form 10 — Surrender of Easement executed only by the owner of the lot that benefits from the easement (the dominant tenement) will be effective to surrender the easement.

In Western Australia, an easement may be cancelled by registration of a Blank Instrument (B2) Form from Landgate.

An easement created under s 167 of the Planning and Development Act 2005 (WA) may only be cancelled by the grantee applying by means of an Application (A5) Form from Landgate. Form A5 may be used to vary or extinguish the easement.

It is also possible, in some circumstances, for an easement to be created on a plan pursuant to Pt IVA of the Transfer of Land Act 1893 (WA) to be cancelled (or modified) by an application using an Application (A5) Form from Landgate by the registered proprietor of the land burdened or benefitted. However, note that if the easement was created with an instrument, then a deed of surrender using a Blank Instrument (B2) Form from Landgate will be required. Consent from each person with an interest in the land burdened or benefitted and any caveator of the land burdened or benefitted will be required.

In South Australia, registered easements can be varied or extinguished with the agreement or consent of the owners of the dominant and servient tenements by lodging an Application for Variation / Extinguishment of Easement form (Form VE) from the Government of South Australia website at the Lands Titles Office. In addition, the Registrar-General has the power under s 90B of the Real Property Act 1886 (SA) to dispense with the consent of the registered proprietor of the dominant or servient land (or both) in certain circumstances.

In Tasmania, an easement or profit a prendre over land under the Act may be extinguished:

• by express release under s 108(1) of the Land Titles Act 1980 (Tas) (the form is the “Instrument Releasing Easement” (form RPP));

• following an application to expunge under s 109(2) of the Land Titles Act 1980 (Tas) (the form is the “Application to Expunge Easements or Profits a Prendre” (form EXE));

• by effluxion of time, the happening of some event agreed upon in the grant, or by abandonment;

• by extinguishment by an order under s 84C of Conveyancing and Law of Property Act 1884 (Tas); or

• by amendment of a sealed plan of subdivision under s 103 of the Local Government (Building and Miscellaneous Provisions) Act 1993 (Tas).

Note that the forms mentioned above can only be obtained in hard copy form through the Land Titles Office Tasmania.

In the Northern Territory, an easement may be amended by both parties to an easement who may lodge an Amendment of Easement or Easement in Gross (Form 57) with the Registrar-General. Easement holders may also extinguish easements made in their favour by lodging an Extinguishment of Easement in Gross (Form 53) or an Extinguishment of Easement (Form 54) with the Registrar-General. A person with a registered interest in the land the subject of a registered easement may apply to the Registrar-General via an Application to Remove Easement (Form 55) to remove an easement that has been registered on the land for more than 5 years. The above forms are available from the LTO.

In the ACT, a registered easement, whether created in the terms of a Crown lease or by deed:

• may be wholly or partially extinguished by the registration of an Extinguishment of Easement (Form 079) or by the surrender of the Crown lease benefited by the easement (pursuant to s 103E of the Land Titles Act 1925 (ACT)); and

• may be wholly or partially varied by the registration of a Variation of Easement (Form 40) (pursuant to s 103F of the Land Titles Act 1925 (ACT).

The above forms are available from the Access Canberra website.

There are a number of land registry forms of which practitioners should be aware of that are available to record the arrangements put in place between the owners of the lots burdened and the lots benefited regarding the terms of an easement, restriction on the use of land, covenant and profit a prendre. Being a matter that impacts the use and enjoyment of land, when the owners of the lots burdened and the lots benefited are looking to vary, release or cancel easements, covenants or restrictions, usually a deed is entered into between the parties documenting the arrangements. The terms of the deed will usually specify the method by which the variation, release or cancellation is to be recorded in the register.

Some easements may contain in their terms and conditions an automatic expiry date. See Variation, release and cancellation.