Can You Remove That Easement? Managing Abandonment Disputes and Conveyancing Risks in NSW

Introduction

Understanding easements and the potential for their abandonment is crucial for property owners and developers in NSW. When questions arise over whether a right of way or another type of easement has been abandoned, significant complications and risks can emerge, particularly impacting the conveyancing process.

This guide offers essential information regarding the procedures for removing an easement in NSW, specifically focusing on instances of abandonment. It aims to clarify the implications of relevant legislation, such as the Conveyancing Act 1919 (NSW), and provide insights into effectively managing disputes and mitigating risks to facilitate smoother property transactions.

Understanding Easements & Their Impact on Your NSW Development Project

What Is an Easement & How It Affects Your NSW Property Rights

An easement grants a legal right for someone to use a portion of another person’s property for a specific purpose, such as providing access or for the installation of utility services. These rights are typically registered on the property’s title, making them legally binding and affecting a defined area of the land.

The presence of an easement can significantly influence how you, as a developer, can use your NSW property and may even affect its overall market value.

The owner of the land burdened by the easement, known as the servient tenement, must not interfere with or restrict the rights of the party benefiting from the easement. For instance, if a statutory authority holds an easement for services like electricity or sewerage over your land, they have the right to access your property to carry out necessary repairs and maintenance.

Furthermore, easements can impact your building and development plans, as owners are generally prohibited from constructing structures over or too close to an easement area without obtaining prior approval from the easement owner. Failure to secure such approval could lead to a legal requirement to remove the unauthorised structure.

Common Types of Easements Encountered in NSW Development Projects

Developers in NSW may encounter various types of easements when assessing or developing land. Understanding these common forms is crucial for project planning.

Some frequently encountered easements include:

• Right of Carriageway (Right of Way): This type of easement allows the owner of a landlocked property to access their land by travelling over a portion of an adjoining property. A common example is a shared driveway that provides access to a battle-axe block. This is a critical consideration for site access and logistics in a development project.
• Cross-Easements: These grant neighbouring properties reciprocal rights to use parts of each other’s land in a specified manner. A typical instance is a party wall between terrace houses, where each owner has rights of support from the adjoining structure.
• Easements for Services: These easements permit the installation and maintenance of essential utilities such as electricity, water, or sewerage. These may run over or under the property, often located at the rear or side. Examples include sewer pipes laid beneath the land by the local water authority or overhead electricity transmission lines, which can restrict development options.

These easements are recorded on the property’s title deed, noted on the registered plan, and may be detailed in incidental instruments or shown on sewerage diagrams.

Why Identifying Easements Is Critical in Your NSW Conveyancing Process

Identifying and understanding any easements is a critical step in the NSW conveyancing process for developers. Vendors have a legal obligation to disclose all easements that affect the land they are selling within the property contract.

As a buyer and developer, it is imperative to be fully aware of how any existing easement will impact the land you intend to purchase and subsequently develop.

Failure to thoroughly investigate and understand the implications of an easement can lead to significant complications and limitations for your development project. Your property lawyer plays a key role in this part of the conveyancing process by:

• Identifying any easements affecting your proposed purchase
• Clearly explaining their effect on the intended use of the land

This due diligence is fundamental to mitigating risks and ensuring the successful conveyancing and execution of your NSW development project.

Easement Abandonment in NSW Property Law Explained for Developers

Defining Easement Abandonment & Its Implications for Your NSW Property

In NSW property law, easement abandonment refers to the situation where the legal right to use an easement is considered given up by the benefiting party. For developers, understanding this concept is crucial as an abandoned easement can be removed, potentially freeing up land for development and positively impacting project conveyancing.

An easement may be considered abandoned if:

• It has not been used for a significant period
• There is clear evidence that the beneficiaries have relinquished their rights

The common law principles governing abandonment treat it as a question of fact, determined by all circumstances of the case. The responsibility to prove abandonment lies with the party alleging it.

Since an easement is a valuable property right, courts in NSW do not lightly infer its abandonment. It is presumed that owners of the benefited land do not intend to give up an easement, even if they have no current use for it, unless doing so is to their advantage, as established in cases like Gotobed v Pridmore (1970) 115 Sol J 78.

Successfully removing an easement, particularly a negative one, can enhance a property’s value and appeal, which is a significant consideration in the conveyancing process for any NSW development.

Proving Intention to Abandon An Easement The Common Law Approach in NSW

A critical element in proving the abandonment of an easement in NSW is demonstrating a clear intention from the owner of the benefited land to never again use the easement or transfer that right to anyone else. This principle, highlighted in cases such as Tehidy Minerals Ltd v Normal [1971] 2 QB 528, means that mere non-use of an easement, even for an extended period, is not sufficient on its own to prove abandonment.

There must be what is described as “a firm intention” to abandon the right of way, and this intention is not “lightly inferred” by the courts.

To establish this intention, evidence beyond simple non-use is generally required. This might include:

• Actions by the owner that make future use of the easement impossible
• Physical changes to their property that permanently prevent its future use

However, actions that are reversible, such as erecting a simple fence or even a wall, are often not considered conclusive proof of an intention to abandon, as these can be removed or altered. The case of Ashoil Holdings Pty Ltd v Fassoulas_ (2005) 12 BPR 23,525 illustrates that erecting a paling fence is almost certainly not abandonment.

The Role of Non-Use & The 20-Year Guideline in NSW Easement Abandonment Claims

While non-use alone is not definitive proof of abandonment for an easement, NSW legislation provides guidelines regarding extended periods of non-use. Specifically, both the administrative process under the Real Property Act 1900 (NSW) and court considerations under the Conveyancing Act 1919 (NSW) acknowledge a 20-year period of non-use as significant.

Key legislative provisions include:

• Section 49(2) of the Real Property Act 1900 (NSW) states that the Registrar-General may treat an easement as abandoned if satisfied it has not been used for at least 20 years prior to the application for removing an easement
• Section 89(1A) of the Conveyancing Act 1919 (NSW) allows the court to treat an easement as abandoned if it has not been used for at least 20 years

However, as clarified in Sheppard v Smith [2021] NSWSC 1207, this 20-year non-use period is an auxiliary factor and not the sole determinant of abandonment. The primary consideration under section 49(1) of the Real Property Act 1900 (NSW) remains whether the easement has, in fact, been abandoned according to common law principles, which include the crucial element of intention.

Thus, the 20-year guideline serves as an important indicator but does not automatically result in a finding of abandonment for an easement in NSW.

Legal Pathways for NSW Developers Seeking to Remove an Easement by Abandonment

The Administrative Process: Your Application to the Registrar-General for Removing an Easement under Section 49 Real Property Act

For NSW developers looking to clear a title for conveyancing by removing an easement suspected of abandonment, one pathway is an administrative process involving an application to the Registrar-General. This process is governed by Section 49 of the Real Property Act 1900 (NSW).

Under this section, the Registrar-General has the authority to cancel a recording of an easement if satisfied that the easement has been abandoned. A key consideration in this process is the period of non-use. Section 49(2) of the Real Property Act 1900 (NSW) specifies that an easement may be treated as abandoned if the Registrar-General is satisfied it has not been used for at least 20 years prior to the application.

However, it is important to understand that this 20-year period of non-use is not the sole determinant. As clarified in cases like Sheppard v Smith [2021] NSWSC 1207, common law principles of abandonment still apply, and the Registrar-General will consider all aspects of abandonment, not just non-use. Section 49(1) allows the removal if the easement has, in fact, been abandoned according to these common law principles.

The administrative procedure involves the following steps:

• An application is made by the owner of the burdened land to the Registrar-General.
• The Registrar-General must then serve a notice of intention to cancel the recording to all persons having a registered estate or interest in the land benefited by the easement.
• These parties are given an opportunity to make submissions as to why the easement should not be considered abandoned.
• The Registrar-General will consider any submissions made before deciding whether to cancel the easement.

It is possible for the Registrar-General to proceed with removing an easement from the Register after considering submissions, potentially without further notice to landowners.

Given that an easement is a valuable property right, landowners benefiting from an easement who receive such a notice should seek competent legal advice promptly. They may need to consider lodging a caveat to prevent the application from progressing while they prepare their submission.

This administrative route offers a way for developers to address an abandoned easement, which can be crucial for the viability of a development project and smooth conveyancing.

The Court Process: Your Application to Extinguish an Easement under Section 89 Conveyancing Act 1919

When the administrative process is not suitable, or if there is a dispute regarding the abandonment of an easement, NSW developers can seek to have an easement extinguished through the Supreme Court of NSW. This court process is governed by Section 89 of the Conveyancing Act 1919 (NSW).

This section empowers the Court to modify or wholly or partially extinguish an easement if certain grounds are established. For developers, understanding these grounds is critical when an easement potentially impedes a project.

The Court may order the extinguishment of an easement on several grounds, including:

• Obsolescence: If, due to changes in the use of the benefited land or the character of the neighbourhood, or other circumstances, the easement ought to be deemed obsolete.
• Impeding reasonable use: If the continued existence of the easement would impede the reasonable use of the burdened land without securing a practical benefit to those entitled to the easement.
• Abandonment: If those entitled to the easement, by their acts or omissions, may reasonably be considered to have abandoned the easement wholly or in part.
• No substantial injury: If the proposed modification or extinguishment will not substantially injure the persons entitled to the easement.

Section 89(1A) of the Conveyancing Act 1919 (NSW) allows the Court to treat an easement as abandoned if satisfied it has not been used for at least 20 years. However, similar to the administrative process, this 20-year non-use period creates a rebuttable presumption and does not automatically mean abandonment; common law principles requiring an intention to abandon remain relevant, as discussed in Sheppard v Smith [2021] NSWSC 1207.

Applying to the Supreme Court for removing an easement is a more formal process than the administrative route. It often arises when an agreement with the beneficiary of the easement cannot be reached or when the evidence of abandonment might be complex.

The Court will carefully consider all evidence presented by both the developer seeking extinguishment and the owner of the land benefiting from the easement. This pathway is an important option for developers facing challenges with easements that could affect their development plans and the conveyancing of the property.

Identifying Key Conveyancing Risks for Your NSW Development from Easement Abandonment Disputes

How Easement Disputes Can Cause Project Delays & Uncertainty for Your NSW Development

Disputes over the abandonment of an easement can introduce significant delays and uncertainty into your NSW development project, particularly impacting the conveyancing process. When a developer believes an easement is abandoned and seeks its removal, disagreements with the beneficiaries can quickly halt progress.

These conflicts typically arise from:

• Differing interpretations of the easement’s status or use
• Competing interests between developers wanting to maximise land use and neighbors holding proprietary rights
• Protracted negotiations or court proceedings that derail project timelines

As highlighted in cases like McWilliam v Hunter [2022] NSWSC 342, where development plans were challenged due to an existing easement, such disputes create an unpredictable environment.

This uncertainty can significantly affect:

• Financing arrangements
• Planning approvals
• Overall feasibility of a development

Consequently, resistance from beneficiaries and challenges in removing an easement mean that developers must be mindful of these potential hold-ups to ensure smooth conveyancing.

Financial Burdens Increased Legal Costs & Impact on Property Value from Unresolved NSW Easements

Unresolved easement abandonment disputes in NSW can lead to substantial financial burdens for developers. These challenges primarily manifest through increased legal costs and adverse effects on property value, which further complicates the conveyancing process.

Engaging in legal battles to prove an easement has been abandoned or to counter claims from beneficiaries inevitably incurs significant expenses. These costs can escalate quickly if the matter proceeds to the Supreme Court of NSW.

Furthermore, the presence of an unresolved easement dispute can negatively impact the market value and appeal of a property. While the successful removal of a negative easement may increase a property’s value, an easement that remains in place due to a dispute can:

• Deter prospective buyers
• Reduce the land’s development potential
• Diminish the property’s overall worth

This financial uncertainty represents a key risk during the conveyancing of development land in NSW.

Difficulties in Proving Easement Abandonment & Overcoming Beneficiary Resistance in NSW

Proving that an easement has been legally abandoned in NSW presents considerable difficulties for developers, often compounded by resistance from beneficiaries. This creates significant conveyancing risks.

The core challenge lies in demonstrating a clear and unequivocal intention by the owner of the benefited land to permanently relinquish their rights to the easement. As established in common law and reinforced by cases like Tehidy Minerals Ltd v Normal [1971] 2 QB 528 and Sheppard v Smith [2021] NSWSC 1207, this intention is not “lightly inferred” by the courts.

Several factors contribute to this difficulty:

• Onus of Proof: The developer, as the party alleging abandonment, bears the burden of proof.
• Mere Non-Use is Insufficient: Even prolonged periods of non-use, such as 20 years or more, do not automatically equate to abandonment under either the Real Property Act 1900 (NSW) or the Conveyancing Act 1919 (NSW). Non-use is just one factor considered.
• “Fixed Intention” Required: Courts look for evidence of a “fixed intention never at any time thereafter to assert the right,” which is a high threshold to meet. Actions like erecting temporary fences or even walls may not suffice, as seen in Ashoil Holdings Pty Ltd v Fassoulas (2005) 12 BPR 23,525.
• Beneficiary Resistance: Beneficiaries who still perceive value in the easement, or who simply wish to retain their rights, can actively resist applications for removing an easement. This resistance can force the matter into a contested court process.

The case of Castle v Achdjian [2022] NSWSC 1340 further illustrates that abandonment is not easily established, even when an easement has been obstructed and unused in certain ways for many years. Courts remain cautious about extinguishing property rights, meaning developers in NSW face an uphill battle in proving abandonment, especially when confronted by determined beneficiaries.

These practical and legal hurdles are central to the conveyancing risks associated with easement abandonment disputes.

Strategies for NSW Developers to Address & Mitigate Easement Abandonment Risks

The Importance of Thorough Due Diligence for Your NSW Property Rights

A critical strategy for NSW developers to manage risks associated with potential easement abandonment is to conduct thorough due diligence early in the conveyancing process. This involves carefully reviewing the property title to understand the specifics of any existing easement.

Key aspects to review include:

• The purpose of the easement
• Who the beneficiaries are
• Any conditions attached to the easement

Vendors in NSW are legally obligated to disclose all easements affecting the land within the property contract. As a developer, it is vital to be fully aware of how any easement might impact your intended use of the land and your property rights before finalising a purchase.

This proactive approach can help identify potential complications related to an easement, including issues of non-use or suspected abandonment, ultimately safeguarding your development project from unforeseen hurdles.

Why Seeking Expert Property Law Advice Is Crucial for Removing an Easement in NSW

When faced with a potentially abandoned easement or the need for removing an easement, seeking expert property law advice is a crucial step for NSW developers. An experienced property lawyer can assess the validity of an easement and provide guidance on the most effective approach for its removal.

A skilled lawyer will help you:

• Understand the complexities of easement law in NSW
• Navigate the requirements for proving abandonment
• Identify any easements affecting your proposed development
• Clearly explain their implications on your land use

This expert guidance is essential for smooth conveyancing and can assist in managing potential challenges, improving the likelihood of successfully removing an easement.

Engaging Beneficiaries & Using Negotiation to Resolve NSW Easement Issues

Engaging with the beneficiaries of an easement and exploring negotiation are valuable strategies for NSW developers looking to resolve issues related to a right of way or other easements. This approach can potentially help you avoid costly and time-consuming disputes.

Open communication can be particularly effective if removing an easement by agreement is a viable option. This collaborative approach offers several advantages:

• Saves significant time compared to formal proceedings
• Reduces legal costs
• Provides a more amicable path to resolving conflicts

Disputes over easement terms or claims of abandonment can often be addressed through direct negotiation or mediation. These alternative dispute resolution methods offer a more efficient way to facilitate the conveyancing process for your development project compared to formal court proceedings.

Learning from NSW Court Cases on Easement Abandonment

Key Lessons for Developers from Castle v Achdjian on Proving Abandonment of a Right of Way in NSW

The NSW Supreme Court case of Castle v Achdjian [2022] NSWSC 1340 offers significant insights for developers dealing with claims of abandonment concerning a right of way. This case underscored the difficulties in proving that an easement has been abandoned, particularly when the easement can still offer some practical benefit.

The dispute involved a right of carriageway that had been obstructed by fences for many years, and the owners of the burdened land sought to have the easement extinguished under section 89 of the Conveyancing Act 1919 (NSW).

The Court meticulously examined several grounds for removing an easement:

• Obsolescence: The easement was not deemed obsolete. Even though vehicular access along the right of way was unlikely due to a large pine tree and other features, the Court found it could still be used for pedestrian access. An easement is not obsolete if it remains capable of fulfilling some useful purpose.
• Abandonment: The Court reiterated that abandonment of an easement is not lightly inferred. The presence of fences, even for an extended period, and non-use for the primary original purpose (vehicular access) did not equate to an intention to abandon the entire easement. Evidence that the previous owner’s children had occasionally used the easement by climbing the fences, and that the previous owners had rejected a proposal to cancel the easement, weighed against a finding of abandonment.
• Scope of the Easement: The terms of the easement were crucial. A broadly defined right of carriageway or “right of traversal” was interpreted to include various modes of use, such as pedestrian access. Therefore, even if one mode of use (vehicular) was impractical, the easement was not considered abandoned if other uses (pedestrian) remained viable and beneficial.
• Substantial Injury: Extinguishing the easement would have caused substantial injury to the owners of the benefited land by depriving them of this pedestrian access.

Key lessons for developers from Castle v Achdjian [2022] NSWSC 1340 include that proving abandonment of an easement in NSW requires strong evidence of an intention to relinquish the right permanently. Mere non-use or the presence of obstructions that are not insurmountable will often be insufficient, especially if the easement can still provide a practical benefit, however minor.

Developers should carefully assess the full scope of rights granted by an easement and understand that courts are generally reluctant to extinguish property rights if any utility remains.

Sheppard v Smith Insights for Developers on Intention & Non-Use in NSW Easement Removal Claims

The case of Sheppard v Smith ([2021] NSWSC 1207, upheld by the NSW Court of Appeal in [2022] NSWCA 167) provides further critical guidance for NSW developers on the pivotal roles of intention and non-use in applications for removing an easement.

This case involved a historic right of way, originally created in 1885 as a “dunny lane,” which had not been used for its initial purpose for over a century and was obstructed by fences.

The courts’ decisions in Sheppard v Smith highlighted several important principles:

• Intention is Paramount: Both the Supreme Court and the Court of Appeal affirmed that a “fixed intention never at any time thereafter to assert the right” is necessary to establish abandonment. This intention is not to be “lightly inferred.” Mere non-use of an easement, even for a very long period (in this case, over 100 years for its original purpose), is not, by itself, sufficient proof of abandonment.
• The 20-Year Guideline: The provisions in NSW law, specifically section 49(2) of the Real Property Act 1900 (NSW) and section 89(1A) of the Conveyancing Act 1919 (NSW), state that an easement may be treated as abandoned if not used for at least 20 years. However, Sheppard v Smith [2021] NSWSC 1207 clarified that this 20-year period does not create an automatic presumption of abandonment that overrides common law principles. It is an auxiliary factor, and the core issue remains the benefited owner’s intention.
• Affirmation of Rights: Actions such as having an easement formally recorded on a property’s title, even if done long after its creation, can be viewed as an affirmation of the right, countering claims of abandonment. In Sheppard v Smith [2021] NSWSC 1207, the noting of the easement on a new title when the property was brought under the Real Property Act 1900 (NSW) was considered a manifestation of an intention not to abandon it.
• Nature of Obstructions: Physical impediments to the use of an easement, such as fences or garden beds, do not necessarily prove abandonment if they are not permanent or do not unequivocally demonstrate an intention to relinquish the right forever.
• Original Purpose vs. Broad Terms: Even if the original specific purpose of an easement (like night soil removal) becomes obsolete, if the terms of the easement are broad enough to encompass other practical benefits (such as general access), it may not be deemed abandoned or obsolete.

For developers in NSW, Sheppard v Smith [2021] NSWSC 1207 underscores that successfully removing an easement based on abandonment is a significant challenge. Reliance on long-term non-use alone is insufficient.

Developers must seek clear evidence demonstrating the benefited owner’s unequivocal intention to permanently give up the easement rights. The interpretation of the easement’s terms and any actions by the benefited owner affirming the right are also crucial considerations in the conveyancing and development process.

Conclusion

This article has explored the complexities of easements in NSW, particularly the challenges surrounding their abandonment, the significant conveyancing risks developers face, and the legal avenues available for removing an easement, such as through the Conveyancing Act 1919 (NSW). It highlighted the importance of understanding property rights, the nuances of proving abandonment of a right of way, and the critical role of due diligence and expert legal advice in managing these disputes effectively.

To effectively manage the risks associated with easement abandonment disputes and ensure smoother conveyancing for your NSW development, contact LawBridge today. Our experienced conveyancing and property lawyers offer trusted expertise and specialised guidance to help you understand your rights and options for removing an easement, protecting your project from costly delays.

Frequently Asked Questions for NSW Developers