*The contents in this blog relates to legislation in New South Wales.
An easement is a ‘right enjoyed by a person with regard to the land of another person. The exercise of which interferes with the normal rights of the owner or occupier of that land’ (Municipal District of Concord v Coles (1906) 3 CLR 96).
A good example of an easement is a ‘right of way’ which gives Person A the right to cross over the land owned by Person’s B. Usually by way of a shared or common driveway, such is typically found on ‘battle axe’ properties.
There are two parties to an easement which are the ‘dominant tenement’ and the ‘servient tenement’. Using the right of way example above, Person A would be the dominant tenement as they are obtaining the advantage (having obtained a right to use part of the land) and Person B would be servient tenement as they are at a disadvantage (having lost the exclusive use of a part of the land). Generally an easement is registered on the Certificates of Title of both the dominant and servient tenements.
But what happens when the easement is no longer needed and no longer used? An application can be made to the Register General to have remove the easement from the title to a property if it can be showed that it has been ‘abandoned’. The Register General will treat an easement as abandoned when it is satisfied that the easement has not been used for at least 20 years prior to the application for the removal (Real Property Act 1900 (NSW) S49).
Whether or not an easement is abandoned is a question of fact. The Register General is the sole determinant in deciding if an easement has been abandoned and can be removed from the title to the property. It is up to the party applying for the removal of the easement to satisfy the Register General in this regard. This is generally done by way of the applicant providing evidence by way of a Statutory Declaration addressing (among others) the following issues:
- the declarant’s knowledge of the property and the easement site;
- how long the declarant has observed non-use of the easement site; and
- if possible, providing an explanation as to how or why the easement site has not been used, for example structures having been built over the site or other obstructions on the easement site.
Upon receipt of the application to remove the easement, the Register General will then notify all of the dominant tenement(s) of the easement of the application. If the dominant tenement(s) are happy for the easement to be removed then they simply let the time for their response to the application lapse. Otherwise, they can make their submissions to the Registrar General.
However, the Register General’s power to remove an abandoned easement under Section 49 of the Real Property Act 1900 (NSW) is limited to easements between private parties and does not extend to easements that benefit the Crown or a public or local authority, such as a local council.
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Easements can be a tricky area of law and require thorough searches to be carried out as part of the application process. If you have a question about easements or any other property related questions get in touch with us today either by phoning 13 43 63 or via our online enquiry form. We look forward to being able to assist you further with your property transactions.
