Easements left in the cold - how to ease them out of existence
An easement which has historically benefited a parcel of land may lose its practical value for various reasons, including changes in ownership or the surrounding environment. In such cases, councils should consider extinguishing the abandoned easement and realise the land’s unencumbered value for future use.
We were recently asked to investigate an easement for a right of way burdening our council client’s land. The easement was created more than a century ago when the land and that next to it were owned by the same family. The idea was to prevent the land benefited by the easement from becoming landlocked.
Over time, each parcel of land went through a number of subdivisions and the easement (now a public reserve) had been made redundant by the opening of a public road along its boundary.
Section 49(1) of the Real Property Act 1900 (NSW) allows the Registrar-General to cancel a recording of an abandoned easement. Section 49(2) of the Act also says an easement is considered abandoned if the Registrar-General is satisfied it has not been used for at least 20 years.
Who can apply for cancellation?
An application for the cancellation of recording of an abandoned easement may only be made by the owner of the land. It must be accompanied by a statutory declaration by at least one party who is not affected by the easement, confirming the easement has not been used for at least 20 years. The application should state:
how and when the easement was created
how long each declarant has observed the easement not being used
the date on which the easement ceased to be used, as well as any circumstances relevant to that cessation
whether each declarant is aware of any litigation involving the easement.
Anyone unaffected by the easement can provide the statutory declaration as a disinterested party. In this case, good candidates included the occupants of neighbouring properties.
What if a candidate hasn’t observed the property for 20 years or more? In that case, it may be wise to contact previous occupants as well in order to cover the statutory timeline under section 49(2) of the Act.
What happens after the application is submitted?
Once the application for extinguishment is submitted, the Registrar-General will serve a notice of intention to cancel the recording on:
anyone who has a registered estate or interest in land benefited by the easement (including tenants under any registered lease)
if the land benefited by the easement cannot be identified, any person that the Registrar-General considers should receive such a notice. In doing this, the Registrar-General will consider the nature and location of the easement, circumstances surrounding its creation, and the physical characteristics of any relevant land.
Anyone receiving such a notice has one month to make submissions to the Registrar-General. Councils will have the opportunity to respond to any submissions received.
A council considering making an application for extinguishment of an abandoned easement should not approach the owner or occupier of the land benefited by the easement. The reason: if the owner or occupier has forgotten about the easement, they may resurrect it by recommencing its usage. If that happens, council’s application will fail.
Instead, councils should seek legal advice before acting.
Author: Edward Choi
Contributing partner: Melissa Potter