What Is an Easement, and How Is It Registered?

Part IX of the Land Registration Act deals with rights one parcel of land enjoys over another. They are easy to overlook and expensive to be without.

The two parcels

An easement involves two pieces of land:

• the dominant land — the land that benefits from the right; and
• the servient land — the land that is burdened by it.

Common examples: a right of carriage-way over a driveway; a right to run water, sewerage, power or telecommunications lines; a right of drainage; a right of support.

Section 95 — registration on both folios

So the right appears on both titles — as a benefit on one and a burden on the other. That is what makes it discoverable on a title search by a buyer of either parcel.

Section 95(2) — the important cross-reference

So an easement that was genuinely created but was left off the title, or described wrongly, still binds the registered proprietor. Registration is how easements are made visible; failure to register does not necessarily destroy them.

For a buyer, the consequence is practical and unavoidable: walk the land. Look for tracks, driveways, pipes, poles, drains and culverts, and ask who uses them and by what right. The Register may not tell you.

Section 96 — the short-form right of carriage-way

Where a certificate of title contains the words “together with a right of carriage-way over the road delineated and coloured brown on the said map”, or words to similar effect, those words have the same effect as if the full words in Part I of Schedule 2 were set out.

The same shorthand appears in section 43 for a transfer of freehold land and in section 53 for a lease. If you see the phrase, read Schedule 2 to know what it actually grants.

Section 97 — other incorporeal rights

Section 97 covers rights that are not easements. An “incorporeal right” here does not include an annuity, rent charge or easement.

Where such a right affecting servient land is created to be annexed to or enjoyed with dominant land, the Registrar shall enter a memorial of the instrument on the folios for both the dominant and the servient land. Again, both titles.

Section 98 — customary rights over registered land

This is an unusual and valuable provision. It allows customary rights — access to a garden, a path to a river, use of a water source, access to a burial ground or sacred site — to be created over registered land and held by the Custodian for Trust Land as trustee for the customary owners.

It matters because customary rights that survive alienation are otherwise very hard to record on a Torrens register. Section 98 gives them a registrable form and a trustee. It fits with the Custodian’s standing duty under section 134 of the Land Act 1996 to take action to establish, further or protect the interests of customary landowners.

Creating an easement properly

1. Identify both parcels by volume and folio.
2. Define the route or area precisely, by reference to a survey plan — a coloured strip on a map is the traditional method and section 96 assumes it.
3. State the nature and extent of the right: who may use it, for what, and with what vehicles or services.
4. Deal with maintenance — who repairs the road or the pipe, and who pays.
5. Obtain mortgagee consent where either parcel is mortgaged.
6. For a State lease, check whether the grant is a controlled dealing requiring Ministerial approval, and note that section 82(3) of the Land Act already reserves to the State rights of way and easements for pipelines in connection with petroleum.
7. Register it — on both folios.