Creating an easement over land
An easement grants a right over one parcel of land (the servient tenement) for the benefit of another parcel (the dominant tenement). Creating an easement requires precision in both the legal instrument and the survey plan to ensure the right is enforceable and registrable.
This is an 8-step workflow for creating an easement over land in Australia. It covers identifying the easement type, negotiating terms, preparing the instrument, and registering it on title. The process varies slightly between states but follows a common structure.
Before you start
- Title searches for both the dominant and servient tenements
- Details of the proposed easement purpose (access, drainage, services, etc.)
- Survey plan or sketch showing the proposed easement location
- Consent of any mortgagee over the servient tenement
The workflow
Identify the easement type and purpose
Determine the type of easement required — right of way, easement for services, drainage easement, or other. Confirm it falls within a recognised category of easement at common law or under the relevant state legislation.
Search the titles and check existing encumbrances
Obtain current title searches for both parcels. Check for existing easements, restrictive covenants, caveats, or mortgages that may affect the proposed easement or require consent.
Negotiate the easement terms
Agree on the key terms: the width and location of the easement, permitted uses, maintenance obligations, contribution to costs, and any compensation payable to the servient tenement owner.
Commission the survey plan
Engage a licensed surveyor to prepare a plan of easement showing the exact location, dimensions, and boundaries. The plan must comply with the requirements of the state land titles office for registration.
Draft the easement instrument
Prepare the easement instrument (transfer granting easement or section 88B instrument in NSW, or equivalent in other states). Include the easement terms, plan reference, and any special conditions.
Obtain mortgagee consent
If either parcel is mortgaged, obtain the mortgagee consent to the creation of the easement. Most lenders require the consent to be in their standard form and may charge a fee.
Execute the instrument and pay stamp duty
Arrange execution of the easement instrument by all parties (and mortgagees if required). Assess and pay any stamp duty — in most states, easements created for no consideration attract nominal or nil duty.
Lodge for registration
Lodge the executed instrument and survey plan with the state land titles office (e.g. NSW LRS, Land Use Victoria). Track the registration to confirmation and provide the client with updated title searches showing the registered easement.
What you will have at the end
A registered easement on the titles of both the dominant and servient tenements, with clear terms governing use, maintenance, and cost sharing.
Common issues
- Survey plan not meeting land titles office requirements, causing rejection
- Forgetting to obtain mortgagee consent before lodgement
- Easement terms that are too vague to be enforceable
- Not checking whether council consent is required for access easements
- Overlooking existing easements that conflict with the proposed easement location
Run this workflow on a real matter
Quillio helps draft easement instruments, review title searches for conflicts, and research easement law across Australian jurisdictions. See /practice-areas/property-lawyers or start a free trial.
This workflow covers consensual easement creation. Easements by prescription, implication, or court order under section 88K of the Conveyancing Act 1919 (NSW) follow different procedures.
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