PART 11 PART 11 EASEMENTS
Chapter 1 Chapter 1 General
65. Easements in gross permitted(1) These Regulations permit the creation of easements in gross (that is, easements without benefited real property).(2) In the construction of this Part, a reference to an easement includes a reference to an easement in gross, unless the contrary appears.
66. Easements by prescription or implication(1) Except as provided in these Regulations, easements cannot be acquired over real property by prescription or implication.(2) However, nothing in these Regulations affects the principles under which there are implied into an easement whatever ancillary rights are necessary for the effective enjoyment of the easement.
67. Rights to support of real property and structures(1) A person shall not excavate or develop real property in a way that adversely affects the stability of adjoining real property or structures on it.(2) A person who breaches subsection (1) is liable to any person who suffers loss or damage as a result of the breach.
Chapter 2 Chapter 2 Implied easements in developments and subdivisions
68. Implied easements for services in development(1) Where two or more lots form part of a single development by one developer pursuant to a contractual scheme, there are implied under this section easements for services that benefit and bind each lot.(2) The easements implied under this section are easements for the passage of water, electricity, telephone, drainage, gas and sewerage through or by means of installations (including sewers, pipes, wires, cables or ducts), to the extent to which the installations are capable of being used in connection with the lot.(3) The easements implied under this section include the right for benefited party to enter the burdened real property at all reasonable times, and upon giving reasonable notice, to repair or renew the installations (but subject to the obligation to repair any damage caused to the burdened real property in the process of doing so).(4) The benefited party shall contribute a reasonable proportion of the cost of maintaining the installations, unless able to establish a legal entitlement to enjoy the easements free from the liability to contribute.(5) Subsection (4) does not make a person liable to contribute to expenditure incurred at a time before becoming, or after ceasing to be, owner.(6) Unity of ownership of two or more lots does not destroy the easements implied under this section.(7) The easements implied under this section are enforceable without any need for registration. However, the Registrar may (but need not) make an appropriate registering in the Register about the existence of the easements.
69. Implied easements of way and other rights shown in subdivision plan(1) Where the Relevant Authority has approved the subdivision of real property into two or more lots, and the approved subdivision plan sets apart real property for the purposes of the easements referred to in subsection (2), there are implied under this section in favour of each lot that is used or intended to be used as a separate parcel of real property, the easements referred to in subsection (2).(2) The easements implied under this section are easements for drainage and the passage of water, gas, electricity, sewerage, telecommunications conduit and cabling, fiber-optic installations, telephone lines and other similar services (collectively, "Service Infrastructure") to the lot, over or under the real property set apart for those purposes on the subdivision plan, as are necessary for the reasonable enjoyment of the lot and of any building on it at any time.(3) The benefited party shall contribute a reasonable proportion of the cost of maintaining the infrastructure of the easements. However, the obligation to maintain party walls binds only the owners of the lots on which the party walls stand.(4) Subsection (3) does not make a person liable to contribute to expenditure incurred at a time before becoming, or after ceasing to be, owner.(5) Unity of ownership of two or more lots does not destroy the easements implied under this section.(6) The easements implied under this section are enforceable without any need for registration. However, the Registrar may (but need not) make an entry in the Register about the existence of the easements.(7) A party exercising easement rights under this section shall be obligated to indemnify, defend and hold harmless the burdened party, against any loss or damage resulting out of such exercise, except to the extent the loss or damage is due to the owner of the land's own gross negligence or willful misconduct.
Chapter 3 Chapter 3 Registration of easements
70. Creation of easement by registration(1) An easement may be created over real property by registering a grant or reservation of easement.(2) When registering an easement, the Registrar shall register the easement —(a) in the folio for the lot burdened; and(b) unless the easement is an easement in gross, in the folio for the lot benefited.(3) The Registrar may register as an easement a right to install and use the Service Infrastructure, even though the right amounts to exclusive possession or occupation of the area occupied by the Service Infrastructure.
71. Requirements for easement(1) In order to be registered, an instrument creating an easement shall —(a) indicate clearly the nature of the easement, the rights granted or reserved under it, and the extent of the real property burdened by the easement;(b) if required by the Registrar, include a plan of survey identifying the lot or part of the lot to be burdened by the easement, and (unless the easement is an easement in gross) the lot to be benefited by the easement; and(c) in the case of an easement in gross, identify the persons having the benefit of the easement.(2) This section does not limit the matters that the approved form of easement may require to be included.(3) Where an easement relates to Service Infrastructure, the locations of which are difficult to describe with precision, the Registrar may accept for registration an instrument that contains only a general description of the location.
72. Easement benefiting and burdening same registered owner's lots
An easement may be registered even if the lot benefited and the lot burdened by the easement have the same freehold owner.
Chapter 4 Chapter 4 Variation or extinguishment of easements
73. Variation or release of easement by parties(1) A registered easement may be varied or wholly or partly extinguished by registering a variation or release of easement.(2) The variation or release —(a) shall be executed by the party benefited by the easement; and(b) shall be executed by the party burdened by the easement.
74. Same person becoming registered owner of benefited and burdened lots(1) If the same person becomes the registered owner of the lot benefited and the lot burdened by an easement, the easement is extinguished only if that owner requests the Registrar to extinguish the easement.(2) A registered easement is not extinguished merely because the owner of the lot benefited by the easement acquires an interest, or a greater interest, in the lot burdened by the easement.
75. Cancellation of easement(1) The Registrar shall cancel the registration of an easement on determining that —(a) any period of time for which the easement was to subsist has expired; or(b) an event on which the easement was to come to an end has occurred.(2) Regardless of whether an easement has been abandoned, if an easement has not been used for at least 12 years, then the registered owner of the burdened parcel may apply to the Registrar to have the easement cancelled, and —(a) the Registrar shall notify the registered owner of the benefited real property (or, in the case of an easement in gross, the person having the benefit of the easement) that, unless the Registrar receives an objection to the application within 30 days of the notice, the Registrar intends to cancel the easement; and(b) if the Registrar does not receive an objection within the 30 day period, or if the Registrar does receive an objection within that time but on application of the Registrar the Court determines it to be of insufficient merit, the Registrar may cancel the easement.
76. Court order varying or extinguishing easement(1) The Court may, on application by any person interested in real property burdened by an easement, make an order wholly or partly varying or extinguishing the easement.(2) The Court may not make an order under subsection (1) unless satisfied that —(a) by reason of a change in use of the burdened real property, as approved by the Relevant Authority, the continued existence of the easement will impede the development of the lot for public or private purposes; or(b) the proposed variation or extinguishment will not materially injure a person entitled to the benefit of the easement.(3) When making an order under subsection (1), the Court may order the applicant to pay compensation to any person entitled to the benefit of the easement.(4) An order under subsection (1) binds all persons who are, or who may become entitled to, the benefit of the easement, regardless of whether they have been notified o f, or participated in, the proceedings.(5) The Registrar shall register the Court order in the folios for the burdened real property and (except in the case of an easement in gross) the benefited real property.
Chapter 5 Chapter 5 Meaning of certain types of easements
77. Party walls(1) In the construction of an instrument referring to a "party wall", that expression means (unless the contrary intention appears) a wall severed vertically and longitudinally with separate ownership of the severed portions, and with cross-easements entitling each of the persons entitled to a portion of the wall to have its building supported by the whole wall.(2) Where real property is transferred by a person entitled to create easements in relation to a wall built on the common boundary of that real property and adjoining real property, and the transfer describes the wall as a party wall, then the transfer, when registered, operates to create an easement for a party wall.
Chapter 6 Chapter 6 Easements created by Court order
78. Easements created by Court order(1) The Court may make an order, upon the application of any interested party (including the owner of any adjoining real property interest), imposing an easement over real property if the easement is reasonably necessary for the effective use or development of other real property that will have the benefit of the easement.(2) The Court may make an order under subsection (1) only if satisfied that —(a) use of the real property having the benefit of the easement will not be inconsistent with the public interest;(b) the registered owner of the real property to be burdened by the easement and each other person having a registered interest in that real property can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement; and(c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.(3) The Court order is to specify the nature of the easement, and whatever information is required by section 71 to enable the easement to be registered. The order may limit the times at which the easement applies.(4) The Court order is to provide for payment by the applicant to specified persons of any compensation the Court determines appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case.(5) The applicant shall pay the costs of the proceedings, unless the Court orders otherwise.(6) The easement may be varied or released in accordance with the provisions of section 73.(7) Nothing in this section prevents the easement from being varied or extinguished under section 76.
Chapter 7 Chapter 7 Contributions to repairs
79. Contribution to repairs(1) Where an easement relating to real property governed by these Regulations contains a covenant obliging one or more persons to contribute to the cost of constructing or repairing the subject matter of the easement, the obligation binds not only those persons but also their successors in title as if they had been a party to the instrument creating the easement, for as long as the easement subsists.(2) However, a person's liability under subsection (1) does not extend to expenditure made before the person became an owner, or after the person ceased to be an owner.