A Section 88B instrument is the approved document lodged with a deposited or strata plan that, on registration, creates easements, profits à prendre, restrictions on use, or positive covenants affecting the land. It can also release certain existing easements or profits à prendre. The statutory basis sits in section 88B of the Conveyancing Act 1919, and from 1 July 2026 most instruments must be generated through NSW LRS Connect rather than prepared as a standalone document.
TL;DR:
- Most section 88B instruments must now be generated using NSW LRS Connect’s digital form builder from July 2026, reducing errors caused by manual editing.
- Accurate labelling and matching of easements, restrictions, and lot identifiers on the plan with the instrument prevent common requisitions and delays during lodgment.
- Releasing easements or profits requires precise identification of the interest and affected lots, with restrictions and covenants needing separate mechanisms for release.
- Signatures from all affected lot owners and relevant authorities are essential, with mortgagee endorsement being crucial and often the most time-consuming step.
- Proper early preparation and cross-checking of the draft instrument against surveyor’s plans and mortgagee details can save clients significant costs and complications later.
Table of Contents
- What a section 88B instrument creates and how statutory terms apply
- Releasing easements and profits: what section 88B actually allows
- Preparing and lodging your instrument under the Lodgment Rules
- Signatures, consents, and execution rules
- How section 88B instruments interact with planning approvals
- Avoiding requisitions: a lodgment checklist
- Practical tips from Acdnsw on reviewing drafts and lender requirements
- Why accurate drafting saves clients money down the track
- How Acdnsw handles section 88B instruments, lodgment and lender coordination
- Sources
- FAQ
What a section 88B instrument creates and how statutory terms apply
An easement gives one lot (the benefited or dominant lot) a right over another (the burdened or servient lot) — drainage, right of carriageway, or services are the common examples. Easements in gross benefit a prescribed authority such as a council or utility rather than another lot. Rather than drafting bespoke wording every time, most practitioners adopt the statutory terms set out in Schedule 4A and Schedule 8 of the Conveyancing Act, which standardise the operative wording for common easement types and restrictions.
A profit à prendre allows someone to take something from the land, such as timber or gravel. Restrictions on use limit what an owner can do on their lot (no further subdivision, height limits, no commercial use). Positive covenants require an owner to actively do something, most often maintaining a shared structure like a retaining wall or a stormwater device.
Part 2 of the instrument becomes necessary whenever:
- The parties want to vary a statutory term rather than adopt it in full
- The interest being created has no matching statutory term
- Specific conditions, exceptions, or maintenance obligations need to be spelled out beyond the standard wording
Getting Part 2 wrong is one of the more expensive mistakes in this area, because it usually only surfaces once a dispute arises years later.
Releasing easements and profits: what section 88B actually allows
Section 88B(2)(c1) permits registration to release an easement or profit à prendre, but restrictions on use and positive covenants generally cannot be released this way. Releasing a restriction typically requires a different mechanism, such as agreement under section 88 of the Conveyancing Act or a fresh instrument dealing specifically with that restriction.
Part 1A of the instrument must clearly identify what is being released, including:
- The exact easement or profit description as it appears on the original creating instrument or plan
- The burdened and benefited lots affected by the release
- Confirmation that the release fully or partially extinguishes the interest, so the resulting folios reflect the correct position
Before lodging, check the release wording against the original creating instrument, not just the current title. Mismatched descriptions between the two are a frequent source of requisitions.
Preparing and lodging your instrument under the Lodgment Rules
A section 88B instrument has three working parts plus an administration sheet. Part 1 identifies new affecting interests and the lots they burden or benefit. Part 1A lists anything being released. Part 2 sets out operative terms where statutory terms aren’t adopted wholesale. The administration sheet carries plan and lodgment case details and needs to match the plan itself, right down to suffix codes and file naming.
Follow this sequence to avoid the most common lodgment defects:
- Confirm the plan number and lodgment case reference before starting the instrument
- Draft Part 1 and Part 1A against the surveyor’s final plan labels, not an earlier draft
- Decide whether statutory terms cover the interest, or whether Part 2 variations are needed
- Generate the instrument in NSW LRS Connect’s Digital Form Builder, since this became mandatory for most matters from 1 July 2026
- Check exceptions apply if you’re relying on a paper-based approach, such as a survey signed before 1 July 2026 or specific plan purposes carved out under the Lodgment Rules
- If amendments happen after downloading the form, update the LRS Connect workspace rather than editing the downloaded document separately
Skipping step six is a common trap. Practitioners sometimes tweak a downloaded PDF and lodge it without syncing the change back into LRS Connect, which creates a mismatch the registrar will pick up.
Signatures, consents, and execution rules
Registered proprietors of every affected lot generally need to execute the instrument, and beneficiaries of a new interest often need to consent too. Where a prescribed authority such as a council holds the benefit of an easement in gross, that authority typically has to execute in its own right.
- Registered proprietors sign for both creations and releases affecting their lot
- Solicitors and licensed conveyancers can sign in limited circumstances, generally where they’re acting under a specific authority, not as a general default
- Mortgagees usually need to endorse the administration sheet or the instrument itself where their security is affected
- Companies execute under their own rules (director and secretary, or two directors), and individual signatures need proper witnessing under Schedule 9 requirements
Pro Tip: Identify every registered mortgagee at the very start of the file, not once the plan is ready to lodge. Bank delegated-officer sign-offs and power-of-attorney verifications routinely take longer than every other execution step combined.
How section 88B instruments interact with planning approvals
A section 88B instrument doesn’t replace development consent or a subdivision certificate. Most subdivisions still need consent under the Environmental Planning and Assessment Act 1979, and the certifier’s role in issuing the subdivision certificate runs on a separate track to LRS registration.
Council execution or certifier sign-off usually needs to happen before the plan and instrument go to LRS, and councils sometimes ask for technical evidence, such as engineering certification for drainage easements, before they’ll execute. Get your surveyor, conveyancer, certifier and any lender talking early, because a certifier waiting on council evidence can hold up an otherwise complete plan for weeks.
Avoiding requisitions: a lodgment checklist
Requisitions on section 88B instruments are almost always avoidable with careful cross checking.
- Match every easement and restriction label on the plan word for word against Part 1 and Part 2 of the instrument
- Confirm lot identifiers for both burdened and benefited lots, including any that changed during survey revisions
- Check whether mortgagee endorsement is needed and build in lead time for it
- Update LRS Connect immediately if anything changes after the form is downloaded, rather than lodging an altered paper copy
If negotiation for a needed easement breaks down entirely, section 88K allows a court application as a fallback, but it demands evidence of necessity and a genuine negotiation history first, so it’s a last resort, not a shortcut.
Practical tips from Acdnsw on reviewing drafts and lender requirements
Before any instrument leaves our office, we compare every plan label against Part 1 and Part 2 wording, confirm the folio identifiers for each affected lot, and flag registered mortgagees early rather than at settlement. That practice helps to avoid last-minute delays.
We bring in additional specialist input for complex encroachments, mixed-title easements spanning strata and Torrens lots, or contested releases where the original creating instrument is ambiguous. Those situations reward experience over speed.
Why accurate drafting saves clients money down the track
Most of the section 88B problems we see didn’t start as legal disputes. They started as a mismatch between what the surveyor labelled on the plan and what the instrument said, discovered years later when someone tried to sell or refinance. The 2026 shift to LRS Connect makes this worse if you’re not set up early, and better if you are. Set up the workspace before the survey is finalised, not after.
— Matthew
How Acdnsw handles section 88B instruments, lodgment and lender coordination
Some conveyancing services provide drafting, cross-checking, and lodging of section 88B instruments as part of a coordinated process within a property transaction, rather than as a separate legal exercise.
If you’re a developer or builder working through a subdivision, our conveyancing for developers and builder-focused services cover site acquisition, easement drafting, and electronic lodgment through LRS Connect as a single coordinated process. Before you contact us, have your plan number, any draft instrument your surveyor has prepared, mortgagee details if a bank is involved, and your target settlement or registration date ready. From there we scope the file, confirm what statutory terms apply, and manage execution and lodgment through to registration. Start with a Rapid Planning Consultation from $1,000 one off, or reach out through Acdnsw to get your file moving.
Sources
For statutory text, see the Conveyancing Act 1919. For procedural detail, see NSW LRS section 88B guidance and the Planning Portal’s Appendix L.
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.
- Section 88B instruments (SSIR 2024) — NSW Land Registry Services guidance
- Conveyancing Act 1919 — NSW legislation (s88B)
- Subdivision certificate guidance — NSW Planning Portal
FAQ
What is a section 88E instrument?
A section 88E instrument deals with positive covenants and restrictions specifically tied to strata and community schemes management statements, distinct from the broader easement and covenant creation power under section 88B. The two are often prepared alongside each other on the same plan, but they serve different statutory purposes under the Conveyancing Act.
How long does it take to remove an easement?
There’s no fixed timeframe, because it depends on how quickly all burdened and benefited parties agree to sign the release and how fast mortgagee endorsements come through. A straightforward release with cooperative parties can register within weeks of lodgment; a contested release can take months and may need section 88K court intervention if agreement can’t be reached.
What are the provisions of section 88K of the Conveyancing Act 1919?
Section 88K lets a party apply to the Supreme Court for an easement to be imposed on land where it’s reasonably necessary and negotiation with the affected owner has failed. The court weighs necessity, consistency with the public interest, and adequate compensation to the burdened owner before making an order.
Does a section 88B instrument replace the need for a subdivision certificate?
No. A section 88B instrument creates or releases interests on the title once registered, but the subdivision certificate under the Environmental Planning and Assessment Act 1979 is a separate step confirming the subdivision complies with development consent conditions. Both processes typically run in parallel before lodgment.
Do I need a conveyancer to prepare a section 88B instrument?
You can technically prepare one yourself, but the drafting has to align precisely with the deposited or strata plan, and errors are a common cause of registration requisitions. Acdnsw prepares and reviews section 88B instruments as part of its conveyancing services for buyers, sellers, builders, and developers across NSW.