An easement on title in NSW is a legal right recorded against your land that lets someone else use part of it for a specific purpose, such as drainage or access, and that right binds every future owner — not just you. It can restrict what you build or how you use that part of your land, and it follows the property when you sell. If your title search shows one, order a current NSW LRS title search and ask a conveyancer to explain exactly what it permits before you buy, sell or build.
TL;DR:
- Most easements in NSW are created through registered dealings like transfers and depositions, benefiting identifiable land and often requiring court or ministerial approval.
- Drainage, carriageway, and utility easements are common, and their exact rights depend on specific wording in the deposit plan and section 88B instrument.
- Confirming easements involves ordering a current title search, reviewing the relevant plans, and consulting professionals to interpret the terms and necessary consents.
- Easements can typically be released or varied with proper legal procedures once all consents are obtained, but court applications for extinguishment require showing the easement is no longer reasonably necessary.
- Early professional advice and thorough documentation help avoid delays and disputes when dealing with easements during buying, selling, or development in NSW.
Table of Contents
- What an easement on title means under NSW law
- How easements are created in NSW: transfers, deposited plans and court orders
- Common types of easements and how to read title wording
- Rights and obligations under an easement in NSW
- How to check if there’s an easement on your NSW property
- How easements affect buying, selling and development in NSW
- How easements can be varied, released or removed in NSW
- Practical checklist for owners, buyers and developers
- When to get professional help with an easement matter
- Typical pitfalls and realistic timelines with easements
- Get your easement checked before you sign anything
- Sources
- FAQ
What an easement on title means under NSW law
An easement is a proprietary right that “runs with the land”. It attaches to a specific parcel, the servient tenement, for the benefit of another parcel, the dominant tenement, and survives a change of ownership on either side. Because the right must benefit land rather than a person, the benefited land has to be identifiable on a plan or in the dealing itself; a purely personal arrangement, such as letting a neighbour park on your driveway, is not an easement.
This is what separates an easement from a covenant, which restricts use rather than granting a right of use, and from a licence, which is personal and ends when the licence holder’s relationship with the owner ends. An unusual or informal arrangement that someone wants recognised as an easement generally needs a court order, not just a handshake.
How easements are created in NSW: transfers, deposited plans and court orders
Most NSW easements are created through registered dealings such as a Transfer Granting Easement, a Transfer Including Easement, or, for public authorities, a Transfer Granting Easement in Gross. The Registrar General’s Guidelines set out these dealing types and confirm that an easement must benefit identifiable land, not simply offer a personal convenience.
For new subdivisions, the standard method is a deposited plan paired with a section 88B instrument, which maps the easement and sets out its exact terms at the time the lots are created. Where landowners cannot agree, the Supreme Court can create an easement under section 88K of the Conveyancing Act 1919 if it is reasonably necessary for effective land use. Crown land and prescribed authorities follow separate rules, often requiring ministerial consent alongside the usual registration steps.
Common types of easements and how to read title wording
Drainage easements typically give the benefiting party the right to lay, inspect, repair and renew pipes, often over a strip of two to three metres, with the construction of that right shaped by Schedule 8 of the Conveyancing Act 1919. A right of carriageway grants access across a servient lot, which may be pedestrian only or extend to vehicles depending on the words used in the instrument. Easements for services (water, sewer, electricity) and easements in gross, usually held by a council or utility rather than a neighbouring landowner, are also common on NSW titles.
Typical title wording you might see includes:
- “Easement for drainage of water” affecting the lot shown on the deposited plan, typically over a narrow strip.
- “Easement for services variable width” benefiting a utility authority.
- “Right of carriageway” granting vehicle access over a driveway strip, width varies by instrument wording.
Rights and obligations under an easement in NSW
Schedule 8 of the Conveyancing Act 1919 supplies the standard wording used to construct many easements, while Schedule 8B sets out rights and obligations implied into them, covering entry for inspection, repair and restoration after works. A dominant owner exercising a drainage or carriageway easement generally has the right to enter, maintain and renew infrastructure, but must avoid unnecessary disturbance and restore the surface afterwards.
Courts have confirmed these rights are read subject to reasonableness. In one recent case, the NSW Supreme Court allowed necessary pipe works under an easement while requiring precautions and restoration, and confirmed that obstructions interfering with a registered easement can be ordered removed. The burdened owner must tolerate lawful use of the easement but is not required to accept works beyond what the terms and the law allow.
How to check if there’s an easement on your NSW property
Confirming an easement before you act, whether buying, building or settling a boundary dispute, takes a handful of practical steps.
- Order a current folio title search from NSW LRS and review the “affecting interests” section for easement notations and plan references.
- Locate the relevant deposited plan and its section 88B instrument to see the mapped location and the exact wording of the easement’s terms.
- Check council planning records for any related development conditions or infrastructure notes tied to the easement.
- Ask the benefiting party, in writing, to confirm how they use the easement and whether any future works are planned.
- Instruct a licensed conveyancer or solicitor to interpret the terms and identify what consents you will need for any dealing.
Pro Tip: Always read the section 88B instrument alongside the deposited plan; the plan shows where the easement sits, but the instrument usually contains the operative wording that governs what can actually be done on it.
How easements affect buying, selling and development in NSW
Easements rarely stop a transaction, but they shape its timing and terms. Registered mortgagees, lessees, covenant chargees and, for Crown land, the relevant minister must give written consent before an easement can be released, varied or newly registered. The Registrar General’s written consent guidance confirms that these consents are required for many electronic dealings, and gathering them is often the slowest part of the process.
Practical consequences include settlement delays while consents are chased, negotiated agreements with the benefiting party over future works, and, for developers, planning conditions or compensation where an easement affects a proposed layout. A pre-settlement check, run early alongside your conveyancer and, where relevant, a planner, avoids discovering these issues after you’ve already exchanged.
How easements can be varied, released or removed in NSW
An easement can be released or varied by a registered dealing once the required consents are in hand, a process governed by section 47 of the Real Property Act 1900, which sets out how the Registrar-General records and varies affecting interests on a folio. The Registrar General’s extinguishment guidance also recognises cancellation on an agreed event, implied release, and abandonment, though abandonment claims rely on evidence of at least 20 years of non-use and are rarely straightforward to prove.
Where agreement cannot be reached, the Supreme Court can extinguish or modify an easement under section 89 of the Conveyancing Act, or create one under section 88K, generally only where the easement is no longer reasonably necessary, or is reasonably necessary for new development, with compensation addressed as part of the order.
Practical checklist for owners, buyers and developers
Before you sign a contract, start a build, or respond to a neighbour’s request, work through the following.
- Order the current title, deposited plan and section 88B instrument, and note the exact wording and the identity of the beneficiary.
- Request written confirmation from the beneficiary about how the easement is used and any planned future works.
- Confirm which consents you’ll need, mortgagee, lessee or Crown, and lodge consent requests early rather than at the last minute.
- If works are planned near the easement, engage a conveyancer alongside a planner or engineer to coordinate approvals from the outset.
Recent NSW Supreme Court decisions confirm courts will weigh reasonable necessity against compensation for the burdened owner before granting or extinguishing an easement, which is why early evidence gathering matters more than the paperwork itself.
When to get professional help with an easement matter
Interpreting an easement’s exact wording, coordinating consents from mortgagees or councils, and preparing and lodging the correct registered dealing are specialist conveyancing tasks, not something to guess at from a title printout. Advanced Conveyancing & Developments NSW handles exactly this kind of work: title interpretation, consent coordination, and lodgement through electronic settlement, with fixed-fee contract reviews so you know the cost upfront.
Most easement questions resolve through this kind of conveyancing work. A matter needs escalation to a property solicitor when it turns into a genuine dispute, such as contesting an extinguishment application or seeking an injunction over unauthorised works.
Typical pitfalls and realistic timelines with easements
The pitfalls I see repeatedly are missed mortgagee consents, an overlooked deposited plan sitting in a dusty file, and e-dealing delays while a bank’s consent team catches up. A straightforward release might take a few weeks once consents are in hand; a contested court application under section 88K or section 89 can run for months and cost considerably more.
Early negotiation, backed by a clear reading of the easement’s actual terms, resolves most of these matters long before anyone needs to file in court.
— Matthew
Get your easement checked before you sign anything
If a title search has turned up an easement and you’re not sure what it means for your sale, purchase or build, a Rapid Planning Consultation gets a licensed conveyancer looking at the exact wording before you commit to anything.
Bring your current title search, the deposited plan, the section 88B instrument and your draft contract, and we’ll tell you plainly what the easement allows, who needs to consent, and what it means for your timeline. Fixed Fee Conveyancing covers buyers working through exactly this kind of title issue, and our transfers service handles releases and variations where an easement needs to be dealt with directly. Settlements can run electronically, and conveyancing reviews may come with an agreed fixed fee before work starts. If a title issue turns out to need more protection than a straightforward review, it’s also worth reading about caveats and how they’re lodged alongside your easement check.
Sources
For the legal detail behind this guide, start with Schedule 8 of the Conveyancing Act 1919, the Registrar General’s guidelines on creating and extinguishing easements, section 47 of the Real Property Act 1900, and Crown Lands’ easement guidance for Crown land specifically. Always check current forms and fees directly with NSW LRS before lodging anything.
This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.
- Creating new easements — Registrar General’s Guidelines (NSW LRS)
- Conveyancing Act 1919 — Schedule 8 (AustLII)
- Written consent for electronic dealings — Registrar General (NSW)
- McLennan v Ng 2025 NSWSC 1429 (AustLII)
FAQ
How do you find out if there is an easement on your property in NSW?
Order a current title search from NSW LRS and look under “affecting interests” for easement notations, then pull the deposited plan and section 88B instrument referenced there. A conveyancer can confirm the exact terms and who benefits from the easement.
What are the three types of easements?
NSW titles commonly show drainage easements, rights of carriageway for access, and easements for services such as water or electricity, alongside easements in gross held by councils or utilities. The exact rights under each depend on the wording in the deposited plan and section 88B instrument, not just the label.
How do you remove an easement from your property in NSW?
An easement can be released through a registered dealing once the required consents are obtained, or extinguished by court order under section 89 of the Conveyancing Act where it is no longer reasonably necessary. The Registrar General’s guidance also allows for abandonment claims, but these need strong evidence of at least 20 years’ non-use.
Is it common to have an easement on your property in NSW?
Easements for drainage and services are common on suburban titles, particularly where a property backs onto a laneway or shares infrastructure with neighbours. Whether one appears on your title depends entirely on the property’s history and its deposited plan, which is why a title search is the only reliable way to check.