What an easement is and how one is created in NSW

What an easement is

An easement is a right over part of another person's land for a particular purpose.

The land that has the benefit of the easement is called the benefited land.

The land that carries the easement is called the burdened land.

The owner of the burdened land still owns the land. The easement only gives the other owner a right to use it in the way the easement says.

Easements can cover access, services such as water, sewer and power, drainage, awning support, signage, and the flow of air or water.

The Conveyancing Act 1919 sets out how easements are created, changed and ended in NSW.

Where you see an easement

A formal easement is recorded on the title to the land.

It appears on the title search for both the benefited land and the burdened land.

The site of the easement is usually shown on a plan, with its width and position.

The terms are set out in the document that created it. Read the terms, not only the name. Two easements with the same name can have different terms.

How an easement is created in NSW

There are four main ways.

1. By agreement between the owners. The owner of the burdened land grants the easement to the owner of the benefited land, usually by a transfer granting easement. It takes effect when it is registered on the title.
2. By a plan with an instrument. When land is subdivided or consolidated, an easement can be created by registering a deposited plan with an instrument under section 88B of the Conveyancing Act 1919. Councils often require this as a condition of a development approval.
3. By court order. The Supreme Court can order that an easement be imposed under section 88K of the Conveyancing Act 1919. The Land and Environment Court can also do so in limited cases.
4. By long use. An easement may also arise from long-standing use. This is harder to prove and is a matter for advice on your facts.

When a court will order an easement

A court can impose an easement only if it is reasonably necessary for the effective use or development of the land that will benefit.

The court must also be satisfied of three things:

1. The use of the benefited land will not be inconsistent with the public interest.
2. The owner of the burdened land, and anyone else with an interest in it, can be adequately compensated for any loss or disadvantage.
3. The applicant has made all reasonable attempts to obtain the easement by agreement, and those attempts have failed.

The court will usually order the applicant to pay compensation, unless there are special circumstances.

The applicant usually pays the costs of the case, unless the court orders otherwise.

This is why the first step is always a written request to the neighbour, made on fair terms.

Changing or ending an easement

An easement can be released by the owner of the benefited land.

It can be changed by agreement between the owners, registered on the title.

A court can also change or end an easement under section 89 of the Conveyancing Act 1919, for example where it is obsolete or has not been used for at least 20 years.

A court-ordered easement can still be changed or ended under section 89.

Common questions