Easements and covenants on your land

What an easement is, and what a covenant is

An easement is a right to use another person's land for a set purpose.

Common examples are a right of way and a drainage easement.

A restrictive covenant, called a restriction on the use of land, stops certain uses or works.

It may limit the type of building, the materials, or the number of dwellings.

How an easement is created in NSW

1. By a registered document. Owners can agree to an easement. A document in the approved form is signed and registered. It is then recorded on the title of the land.
2. By a plan with a section 88B instrument. When a plan, such as a plan of subdivision, is registered, an instrument under section 88B of the Conveyancing Act 1919 can create easements, restrictions and positive covenants. They take effect on registration of the plan.
3. By court order under section 88K. The Court can impose an easement where it is reasonably necessary for the effective use or development of other land.

When the Court will impose an easement

Under section 88K of the Conveyancing Act 1919, the Court must be satisfied of each of these points:

1. The easement is reasonably necessary for the effective use or development of your land.
2. The use of your land will not be inconsistent with the public interest.
3. The owner of the burdened land, and others with a registered interest, can be adequately compensated.
4. You made all reasonable attempts to obtain the easement by agreement, without success.

The Court must order the applicant to pay compensation, unless special circumstances apply.

The applicant pays the costs of the proceedings, unless the Court orders otherwise.

How a covenant or easement can be released, changed or removed

1. By agreement. The owners of the benefited land and the burdened land agree. A release or variation is signed and registered. Mortgagees must consent to a variation.
2. By court order under section 89. A person interested in the land can apply to the Court to modify or extinguish an easement or restriction.

The Court can make an order under section 89 on grounds such as these:

1. The restriction should be treated as obsolete because of changes in the use of land, the character of the area or other material circumstances.
2. It impedes the reasonable use of the land without practical benefit to those entitled to it.
3. Those entitled to the benefit have agreed, or by their conduct have abandoned the easement or waived the restriction.
4. The change will not substantially injure those entitled to the benefit.

An easement not used for at least 20 years before the application may be treated as abandoned.

What to check on your title

1. The title search. It lists the easements, restrictions and covenants recorded on the land.
2. The registered plan. It shows where an easement sits on the land.
3. Any section 88B instrument. It sets out the full terms of each easement and restriction.
4. Who has the benefit. This tells you whose agreement you need to release or change it.

Common questions

Related articles

• Property LawWhat an easement is and how one is created in NSW
• Property LawRestrictive covenants and whether they can be removed