Easement application process : Section 88k explained
3 September 2023 in Building and Construction Law | 4 min read | skip to FAQsSection 88K of the Conveyancing Act 1919 (NSW) is designed to provide a structured process for property developers, builders or owners to apply to the Supreme Court to create an easement where such an easement is reasonably necessary for the effective use or development of the applicant’s land. It acknowledges the right to develop and use real property (land).
What is an easement?
Easements grant specific rights to use another person’s property for defined purposes. Common examples include drainage, sewerage or granting access to crucial utilities or walkways. This right is officially recorded on the titles of both properties, meaning the easement stays with the land even if the land is sold. The land over which the easement passes is known as the ‘servient land’ or ‘burdened land’ and the property benefiting from the easement is termed the ‘dominant land’ or ‘benefited land’.
Section 88K Application
Gaining authorisation under Section 88K involves making an application to the Supreme Court of NSW. The application should outline the development plans, why the easement is necessary and that all reasonable attempts have been made to obtain the easement by agreement. The court evaluates various factors, including the importance of the easement, the benefits of the development and any potential effects.
The requisites for a successful easement application can be summarised by the following:
- The easement is “reasonably necessary for the effective use or development of other land”;
- The “use of the land having the benefit of the easement will not be inconsistent with the public interest“;
- The “owner of the land to be burdened by the easement and each other person having an estate or interest in that land… can be adequately compensated for any loss or other disadvantage”; and
- “All reasonable attempts have been made by the applicant for the order to obtain the easement…but have been unsuccessful”.
In cases where an easement order is granted, the court specifies the nature, terms and potentially the time limits of it. Compensation details are also outlined, unless exempt due to special circumstances. Notably, compensation is calculated by reference to the loss sustained by the owner of the burdened land, as opposed to the benefit derived by the owner of the benefited land (Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010)).
Types of Easement
Easement of Way. This type of easement is also called a right-of-way easement. It allows people to use a defined strip of land on the property. An example of this is a shared driveway.
An Easement of Support. When 2 or more properties share a common wall or other structure for stability.
A Services Easement. It is an area of the property used to deliver essential services such as electricity and telephone lines.
Light and air easements. Light and air easements restrictions are put in place to prevent the construction of a building or wall if it impacts the light and air or view of another party.
Easements can be legally created in other ways other than 88K
- Creation by express grant; Easements over Torrens title land requires the execution of an approved form of transfer and the particulars of the dealing must be recorded. Easements should be registered as a plan under s88B of Conveyancing Act 1919 (NSW)
- Creation by general words in conveyance or transfer; s67 of the Conveyancing Act 1919 (NSW) allows easements to be created over old system title land by the general words implied into conveyances.
- Creation by legislation; Easements created in favour of public authorities and other similar persons can be provided for by legislation.
- Creation by implied grant or reservation; When no easement is expressly granted or reserved, the law may imply the granting or reservation of an easement. This may be through the implied terms of the conveyance or use of the land. For example, the property being described as abutting or adjoining a road or lane implying a right of use over the road or lane and the parties share this common intention.
- Creation by prescription; Easements may also be created through prescription, that being the continued use for at least 20 years, being based that the long term continued use of an apparent right presumes the actual right. The use must have been sufficiently frequent that a reasonable person would deem an enduring right is being asserted.
- Creation by acquiescence or estoppel; An easement may be created by acquiescence or estoppel as a remedy when a landowner is deceitful and causes another landowner, due to the deceitful representations, a detriment by relying upon those representations.
How can BSM Sydney Lawyers assist you?
The experienced construction lawyers at Brander Smith McKnight Sydney Lawyers understand the intricacies surrounding Section 88K applications and easements. Our expert building lawyers will help you complete your building and property development while adhering to legal obligations. If you have questions or need assistance with Section 88K applications or any other building related legal matters, please don’t hesitate to contact BSM Construction Lawyer Sydney for a free 20-minute consultation with a senior construction lawyer.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
FAQs
What is an Easement?
In simple terms, it is the legal right to use another person’s land, usually a neighbour, for a specific purpose, such as locating and accessing utilities or providing essential services. Once granted by the court, it is essentially permanent and is registered on the title of the land.
What are Benefited and Burdened Properties?
Whilst easements rights can be attached to a specific person or entity, known as easements in gross, they are generally granted for the benefit of a specific property. This property, (which gains access to the other’s land) is called the ‘benefited’ or ‘dominant’ property, while the affected property, (who allows the easement on their land) is called the ‘burdened’ or ‘servient’ property. This terminology follows the thought that the benefit of the easement will ‘run with the land’, being enjoyed by all future owners of the benefited property.
The lawyers at BSM Construction Lawyer Sydney can assist you with easements and offer a free 20-minute consultation.
Who is responsible for the Maintenance of an Easement in NSW?
The owner of the benefited, otherwise known as the dominant who gains the benefit of the easement.
BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.
About the Author
Elizabeth DonoghueBachelor of Laws with First Class Honours I Bachelor of Business I Graduate Diploma of Legal Practice I Admitted to the Supreme Court of NSW & the High Court of Australia
View profileElizabeth holds a Bachelor of Business and a Bachelor of Laws with First Class Honours from the University of Wollongong. Elizabeth achieved outstanding results across both of her university degrees and was recognised with the Dean's Merit Award for academic excellence. She has a Graduate Diploma of Legal Practice from the College of Law and is admitted to practice as a legal practitioner in the Supreme Court of NSW and the High Court of Australia. Elizabeth is a valued member of the building and construction and property dispute teams. She is known for her passion for law, strong organisational and communication skills, meticulous attention to detail and proactive approach to her work. Elizabeth has extensive knowledge and experience of legislation relating to construction and property disputes. She has worked on several matters involving easements for building projects.
