Generally speaking, an easement is a right of access held by someone who is not the owner of a land to access the land for specific purposes. Common examples of easement are right of carriageway and easement to drain water, which allow someone (usually owners of neighbouring lands) to pass through, or drain water in, specific parts of your land.

Easements are largely divided into two types: ones that benefit your land and ones that burden your land. The former allows you to use and access others’ land (you have the benefit), while the latter allows others to use and access your land (you have the burden).

All easements are usually recorded on the title of a land. If you look at the certificate of title of your land, you may come across descriptions of easements like “easement for services 2.89 metre(s) wide and variable affecting the part(s) shown so burdened in the title diagram”.

In the context of a strata scheme, easements burdening the scheme are recorded on the title of the common property. An example can be a right of vehicular access burdening the scheme, which allows non-owners of the scheme (usually owners of neighbouring lands) to use particular parts of the common property for vehicle access: Schedule 5 of Strata Schemes Development Act 2015.

If there is a current easement burdening the scheme that is no longer used, the Owners Corporation may consider extinguishing it by following particular procedures.

First, ascertain the terms and the benefiting party of the easement. This is because an easement can only be extinguished with the consent of the benefited party (because the benefited party “owns” the right). Sometimes the easement may require the consent of a third party to be extinguished.

Second, the Owners Corporation needs to pass a resolution under section 34(2)(b) of the Strata Schemes Development Act 2015 which provides that the Owners Corporation agrees to extinguish that particular easement.

Lastly, the Owners Corporation and the benefiting party need to execute a dealing called transfer releasing easement which will be lodged with the NSW Land Registry Services (LRS) to formally extinguish the easement. The execution of the Owners Corporation will need to be compliant with section 273 of the Strata Schemes Management Act 2015. In addition, the LRS requires the Owners Corporation to complete certain approved forms to certify the date of the resolution.

In some cases the benefiting party may require payment to extinguish the easement because they are forfeiting a valuable right. The Owners Corporation may enter into a written agreement with the benefit party which provides for the payment as well as execution and lodgement of the dealing. Of course, it follows that such agreement can only be entered if a resolution is passed.

Other circumstances where an easement burdening a strata scheme can be extinguished

If consent cannot be obtained from the benefiting party, there are other ways that the Owners Corporation can extinguish easements.

Section 49 of the Real Property Act 1900 provides that if there is an easement not being used for 20 years it is considered to be abandoned. The Owners Corporation may apply to the LRS for a cancellation of the recording of an abandoned easement. The LRS may require submissions and statutory declarations from owners and third parties before deciding if the easement can be cancelled.

If the easement is not abandoned and consent cannot be obtained, the Owners Corporation may apply to the Supreme Court of NSW for an order to modify or extinguish the easement under section 89 of the Conveyancing Act 1919. The Court will have to take into consideration a range of factors including the character of the neighbourhood, impact on the reasonable users of the land, and whether the extinguishment will substantially injure the persons benefiting from the easement (Denshire v Newcastle City Council [2017] NSWSC 577).

The above advice only applies to easements burdening the scheme. For easements benefiting the scheme, different procedures and legislation apply.

Prepared by
Bannermans Lawyers

Author: Bannermans Lawyers