Version 2 - 01/05/2020
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This guide is produced by the Western Australian Land Information Authority (Landgate) to provide the community with a basic understanding of strata titling principles. It is a general information source only, it is not legal advice and should not be taken as legal advice on strata titles. You should refer to the legislation available on the WA government legislation website www.legislation.wa.gov.au
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Easements may be registered against freehold or Crown land under the Transfer of Land Act 1893 (TLA). No detailed provisions are set out in the TLA and the general law in respect of easements must be followed.
A simple definition of an easement is:
"a right attached to a parcel of land which allows the proprietor of the parcel to use the land of another in a particular manner or to restrict its use to a particular extent."
“Under the general law an easement without a dominant tenement (an easement in gross) cannot exist. In this State, the State of Western Australia, a State Instrumentality, Statutory Body Corporate or a Local Government may be the grantees of an easement without a dominant tenement, as provided for under s.195 of the Land Administration Act 1997 (LAA). Other enabling legislation may also contain provisions for the creation of an easement in gross.”
Easements may be said to be either:
- express easements, i.e. those created by a deed prepared for that purpose or incorporated in a transfer of land
- implied or statutory easements, i.e. a right of carriage way appurtenant to lots abutting on a right of way set out on a plan of subdivision (s.167A of the TLA), easements for support, shelter and projections under section 61 of the Strata Titles Act 1985 (STA).
2 Types of Easements
The usual types of easement presented for registration are:
- rights of carriage way
- rights of support to land burdened by buildings
- rights to erect a party wall
- rights to light and air (see Property Law Act, 1969, s.121)
- rights to take water from wells or bores
- rights to install and operate drains and drainage works
- rights to install, maintain and operate oil, gas or other pipelines
- rights to install, maintain and operate electric power lines, telephone and other cables and supporting pylons.
3 Essentials for the Registration of an Easement
An easement must contain certain essentials and the absence of any one essential will result in requisitions issuing to either correct the fault or refusal to register, should the fault be incapable of correction.
The essentials are:
- there must be benefited land (which may be leasehold or strata leasehold in leasehold scheme under the STA) ie: the land which enjoys the benefit of the easement
- there must be burdened land (which must be fee simple, except that it may be strata leasehold in a leasehold scheme under the STA) ie: the land which is burdened by the easement
- the benefited and burdened land must be distinct and in separate ownership (with the exception of easements in gross created on subdivisions under Part IVA of the TLA and short from easements under s33 of the STA)
- the easement must benefit the beneficiary (grantee) and impose an obligation on the burdened land owner (grantor)
- the easement created must be capable of and be made with the express intention of running the land
- the benefited and burdened land must be adjacent, although it is not essential that they must be contiguous.
4 How Created
There are five basic methods for the creation of express easements. These are:
- by the registration of a deed prepared and lodged expressly for the purpose of creating the easement
- by granting to or reserving from the land the subject of a registered transfer, an easement embodied in and created by that transfer;
- the approval of a deposited plan containing an easement created pursuant to s.167 of the Planning and Development Act 2005 (P&D Act)
- by notation on deposited plans of subdivision under Part IVA of the TLA, and
- by notation on scheme plans under s.33 of the STA.
5 Easements Created by Deed
A deed prepared for the sole purpose of creating an easement should be prepared on a B2 Blank Instrument form and the easement should be set out in narrative form.
The easement document must be stamped at the Office of State Revenue (Stamp Duties Division).
The following details should be clearly shown:
- the name and address of the grantor
- the name and address of the grantee
- an accurate description of the lands of the grantor and grantee and
- an accurate description of the land burdened and the land to be benefited by the easement. An Interest Only Deposited Plan should be prepared by a licensed surveyor and lodged at Landgate to define the position of the easement. The easement document can then make reference to the Deposited Plan.
Note: In the case of a simple bore easement, a Deposited Plan is not necessary. A suitable sketch can be drawn on the document or attached to it as a separate sheet.
The grantor should be described as:
"A of etc, the registered proprietor for the time being of (the land to be to be burdened)",
and the grantee should be described as:
"B of etc, the registered proprietor for the time being of (the land to be benefited)".
An easement by Deed needs no monetary consideration, the action of the parties in entering into the Deed is sufficient.
The purpose for which the easement is being created must be clearly stated e.g. a right of carriage way, a party wall, etc. The rights and obligations of the parties should be clearly stated. Any limitation as to duration or height must be set out. Where a limitation is imposed as to the height to which the easement affects the burdened land, the height should be expressed as a distance in metres above the Australian Height Datum or A.H.D.
Note: The Australian Height Datum within the Perth Metropolitan Zone is based on mean sea level at Fremantle. Benchmarks, fixed at assigned heights, are used to control all vertical measurements for mapping purposes.
When presented for registration the document must be accompanied by the duplicate certificates of title (if any) for the benefited and burdened land.
Encumbrances etc. against the land affected by an easement created by a Deed must be shown in a section headed Limitations, Interests, Encumbrances and Notifications that is set out at the end of the document. A mortgagee of the burdened land should be asked to give an unqualified consent to the easement.
With such a consent, the easement would survive the exercise of the mortgagee’s power to sell. Absolute caveats will prevent the registration of an easement, as will a prior registered easement which contains provisions which will prevent the use of the land in the manner set out in the new easement.
Reciprocal easements in a single document, i.e. where the parties are both grantor and grantee, will not be registered. A separate document is required for each easement.
6 Easements Incorporated in a Transfer
A transfer of land may incorporate a creation of an easement by grant or reservation. An easement is said to be granted where the land being transferred also carries the benefit of an easement over land belonging to the seller in the same or another title. An easement is said to be reserved where the land being transferred is burdened with an easement in favour of land retained by the seller in the same or another title.
A right of carriage way may be created in any transfer by the inclusion of the words:
"together with a right of carriage way over .......(specifying or describing the land over which the easement is created and referring to a map or plan endorsed whereon such land is defined by sufficient measurements to allow it to be accurately plotted)."
Where such words are used, they are construed as if all the words set out in the Ninth Schedule to the TLA have been used (s.65 of the TLA). Where the creation of an easement by transfer is contemplated, the form selected should be a T2 Transfer of Land with additional pages form.
The words creating the easement should be shown on page 2 of the form immediately following the operative words of the transfer. Where the land affected cannot be properly described in words, an Interest Only Deposited Plan should be prepared by a licensed surveyor and lodged at Landgate to define the position of the easement. The transfer can then make reference to the Deposited Plan
In the case of a simple bore easement a Deposited Plan is not necessary. A suitable sketch can be drawn on the transfer or attached to it as a separate sheet.
Easements may be incorporated in and created by the registration of a lease of freehold land. These are similar to the easements mentioned above except that they are effective only during the term of years created by the lease and any extension of the term. On expiry of the lease, or its surrender by the lessee or re-entry by the lessor, the easement ceases to have any effect.
7 Creation of Easements on Plans of Subdivisions under Part IVA of the TLA
The use of the word Plan in this section means a plan, deposited plan or diagram referred to in s.166 or s166A of the TLA or a strata / survey-strata plan within the meaning of the STA.
A registered proprietor of land that is the subject of a Plan, a Public Authority or the Local Government in whose district the land is situated may have noted on the Plan the location of an easement to which the land will be subject. The easement will have effect even though any land burdened by the easement has the same proprietor as any land benefited by the easement.
The necessary information regarding the easement may be specified solely on the Plan itself or in both the Plan and an instrument lodged with the Plan.
7.1 On the Plan
Where the details of the easement are noted solely on the Plan, the following information is required:
- A description of the easement in short form, eg:
"Easement for right of carriage way under s.136C of the TLA."
- The land to be burdened by the easement.
- The land to be benefited by the easement or the name of the Local Government or Public Authority.
- The term of the easement (if applicable).
Note: No further information about the easement will be noted on the Plan unless the Registrar of Titles specifies it.
7.2 In an Instrument with the Plan
Where the details of the easement are more than the short form, it must be contained in an instrument lodged with the Plan. This must be in the form of a Deed, prepared on a B2 Blank Instrument form and be capable of registration. The instrument is to be duly stamped by the Office of State Revenue and must contain the following information:
- The proprietor(s) name and address.
- A description of the land to be burdened by the easement.
- A description of the land to be benefited by the easement or the name of the Local Government or Public Authority.
- An operative clause describing the easement and stating that the rights are created pursuant to s.136C of the TLA and showing any limitations associated with the rights.
Limitations should be clearly specified:
"between the hours of ………..."
"/limited to a height/ depth of ......metres above/below the Australian Height Datum".
- Any encumbrances over the land burdened by the easement. (Absolute caveats must be withdrawn to allow registration of the instrument).
- The date of execution of the agreement.
- All of the required consents (see below).
- Signed by all parties and witnessed.
The land burdened by the easement must be contained within the plan, however any land to be benefited by the easement can be outside the Plan.
All duplicate certificate(s) of title (if any) for land receiving the benefit of the easement must be produced for endorsement.
7.3 Consents required
An easement cannot be created under Part IVA of the TLA unless the proprietor obtains the written consent of each of the following:
- A person having a registered interest in any land that would be burdened by the easement (i.e. mortgagees, chargees and lessees etc.)
- A caveator in respect of any land that would be burdened by the easement. (Where an instrument is lodged, absolute caveats must be withdrawn to allow registration of the instrument).
- A person having a registered interest in any land that would be benefited by the easement (i.e. mortgagees, chargees and lessees etc).
- A caveator in respect of any land that would be benefited by the easement.
Where an instrument is lodged, the consents should be produced with the instrument. If the land has been further encumbered after lodgement of the Plan or the instrument, the additional consents of the subsequent encumbrances and caveators must be obtained prior to or attached to the application for the creation of the new titles.
7.4 When easements created on plans have effect
Land becomes subject to an easement noted on a Plan in the case of a strata/survey-strata plan at the time the plan is registered or in any other case at the time the new title(s) for the land the subject of the Plan are created and registered.
Where an instrument is lodged under Part IVA of the TLA in relation to a Plan, the instrument shall be deemed to be registered at the time the land becomes subject to the easement.
7.5 Easements created on plans for a specific term
Where an easement created under Part IVA of the TLA is for a specific term, and that term has expired, the easement no longer has any effect. There is no need to apply for a discharge of the easement.
7.6 General comments
Although they are created at the same time, it is the Registrar's policy to endorse easements created under s.167 of the P&D Act on the relevant title(s) before any easements created on Plans pursuant to Part IVA of the TLA.
When two or more lots on an Approved Plan are subsequently amalgamated or re-subdivided, any Part IVA of the TLA easements created on the parent survey subsist and will be carried forward onto the new title.
8 Easements over Crown Land
Generally, only the Minister for Lands has power under the LAA to grant easements over Crown land. However, other legislation can allow for the creation of an easement over Crown land.
Where the Minister for Lands grants an easement over Crown land that is the subject of a management order or an interest (e.g . lease, mortgage), then consent of the management body and/or interest holder must be obtained for the easement.
The Minister for Lands may grant an easement in gross over Crown land to any person or body. These easements are limited to the grantee only and cannot be transferred. For example, an easement in gross to a lessee is only valid for that lessee and not any new lessee on a transfer of that lease.
Generally, an easement between two Crown land parcels cannot be accepted as the State of Western Australia owns both. However, an easement between two Crown land parcels can be accepted where either or both the benefited or burdened land was limited to a leasehold interest over the Crown land. In these instances, the easement is made with the lessee and continues on any transfer of the lease but only remains valid during the term of the affected lease.
If an easement is made between two separate Crown leasehold estates (eg. one lease exists over the benefited land and a different lease exists over the burdened land) then s.18 of the LAA consent of the Minister for Lands is required unless the Crown land is vested for purposes of another Act.
The land description in an easement where the benefited land or burdened land is limited to a leasehold interest must additionally refer to the lease affected by the easement. For example:
"As to Lease N123456 only "
or where the lease and easement are lodged together
"As to Lease ........ dated 0.0.2017 made between AB as lessor and CD as lessee only."
The lessee's copy of a lease is not required to be provided with any easement where the benefited or burdened land is limited to a lease interest.
9 Variation of Easement over Crown Land
A grantee of an easement, with the consent of any management body or lessee of the relevant land, may apply to the Minister for Lands to vary an easement. Under s.144(3) of the LAA, the Minister may then vary the easement or refuse the application.
A variation of easement cannot alter the easement area.
10 Easements created under the Strata Title Act 1985 (STA)
10.1 Statutory Easements (sections 61 to 66 of the STA)
10.2 Short Form Easements
If an instrument is lodged together with the scheme plan or amendment of scheme plan creating a short form easement, the complete details of the easement are to be contained in the form of a deed, prepared on a blank instrument form and be capable of registration or on the Easement Electronic Form.
It must contain the following:
- The owner(s) name and address.A
- description of the land to be burdened by the easement.
- A description of the land, public authority or local government to be benefited by the easement.
- An operative clause describing the easement created pursuant to s.33 of the STA and showing any limitations associated with the easement.
- Any encumbrances over the land benefited or burdened by the easement which prevent registration of an instrument must be withdrawn prior to registration. E.g. Absolute caveats.
- The date of the agreement.
- The consents required to register a scheme plan (required under s.34 STA – see STR-02) or amendment of scheme plan (required under s.35 STA – see STR-04).
- Signed by all parties and witnessed.
10.3 Easements in Gross
Strata Titles (General) Regulations 2019 (ST(G)R) regulation 36 enables short form easements in gross to be created under the STA. The short form documents may describe the terms of the easement by reference to a:
- planning condition,
- statutory provision or
If the terms of the easement are to be contained in a planning condition or contract, to enable visibility and searchability of the terms, the ST(G)R enables a copy of the contract, statutory provision or planning condition to be contained within a blank instrument form or Easement Electronic Form lodged with the application to register the scheme or amendment of scheme. If the terms are to be referenced to a statutory provision, instead of a copy of the statutory provision, details of the statutory reference clearly indicated in a blank instrument form or Easement Electronic Form will be acceptable.
If the easement expires at the end of a specified period (as indicated on the plan), it will be taken to mean that the grantor and grantee consent to the Registrar of Titles discharging the easement in gross at any time after the end of the specified period, without any application or notice being lodged at Landgate.