New South Wales Consolidated Acts
[Search this Act]
REAL PROPERTY ACT 1900 - SECT 47
Recording, variation and release of easements etc
47 Recording, variation and release of easements etc
(1A) In this section,
"affecting interest" means an easement, profit à prendre or restriction
on the use of land.
(1) When an affecting interest that burdens land under
the provisions of this Act is created, the Registrar-General is to record
particulars of the dealing creating the affecting interest:
(a) in the folio
of the Register for the land burdened, and
(b) if the affecting interest is
an easement or profit à prendre that benefits land under the provisions
of this Act--in the folio of the Register for the land benefited.
affecting interest may, by a lease, be granted in or over land, other than the
demised land, of which the lessor is registered as proprietor under this Act,
where it is granted for the purpose of being annexed to or used and enjoyed
together with the estate or interest of the lessee under the lease.
affecting interest may, by a lease, be reserved in or over the demised land
for the purpose of being annexed to or used and enjoyed together with other
land of which the lessor is registered as proprietor under this Act.
registration of a lease that grants or reserves an affecting interest, the
Registrar-General shall make such recordings in the Register in respect of the
affecting interest, as the Registrar-General considers appropriate.
Registrar-General may record a dealing effecting a disposition of a registered
affecting interest in gross by making such recordings in the Register as the
Registrar-General considers appropriate.
(5A) The terms or site of a
registered affecting interest may be varied by a registered dealing in the
approved form, or by such a dealing and a plan illustrating the varied site
registered or recorded under Division 3 of Part 23 of the Conveyancing Act
(5B) The dealing effecting the variation and the plan (if any) must be
(a) by the registered proprietors of the land burdened, and of any
land benefited, by the affecting interest, and
(b) by every mortgagee,
chargee or covenant chargee under a mortgage, charge or covenant charge
recorded in the folio of the Register relating to that land.
Registrar-General may refuse to register any such dealing or plan unless it is
supported by consents in writing to the registration of the dealing or plan
signed by (or by an agent authorised by) such of the following persons as the
Registrar-General may determine:
(a) the lessee under any lease, or the
judgment creditor under any writ, recorded in the folio of the Register
relating to that land,
(b) the caveator under a caveat relating to any estate
or interest in that land.
(6) An affecting interest recorded in the Register
may be released wholly or partly by a registered dealing in the approved form.
(6A) Where the registered proprietor of an affecting interest applies to the
Registrar-General in the approved form for cancellation of a specified
recording in the Register relating to the affecting interest and, except in
the case of an easement created under section 88A of the Conveyancing Act 1919
or where the Registrar-General otherwise approves, the application bears, or
is accompanied by, the written consent of each person who has a registered
interest in the land benefited by the affecting interest, the
Registrar-General may, to the extent applied for, cancel any recording
relating to the affecting interest in any folio of the Register, and, when it
becomes available to the Registrar-General, upon any certificate of title.
(7) An affecting interest (being an affecting interest that benefits land)
recorded in the Register shall not be extinguished solely by reason of the
same person becoming proprietor of separate parcels of land respectively
burdened and benefited by the affecting interest, notwithstanding any rule of
law or equity in that behalf.
(8) The provisions of subsection (7) shall only
apply to easements and profits à prendre which, according to the
Register, subsist at the commencement of the Real Property (Amendment) Act
1970 and to easements and profits à prendre recorded in the Register
after that commencement.
(9) Subsection (7) applies only to a restriction on
the use of land recorded under this section after the commencement of Schedule
1  to the Property Legislation Amendment Act 2005 .
AustLII: Copyright Policy