Right of Way – Ways to get it right.Min Hur
The property market in NSW is at all-time high and the owners are changing hands all around NSW every weekend. We believe a dispute with your new neighbours should be the last thing on your to do list. The dispute can be very stressful and also very costly.
If you have a right of way over your neighbour’s land then it may be the time to check to make sure that it has been recorded in accordance with the law and regulations.
In NSW there are different ways to create and record right of way on the folio of register at the LPI.
It can be created and registered by way of Transfer granting right of way over the land. The form of the Transfer used needs to be approved under the legislation. There is also Transfer form available for download in the LPI website.
This process would require agreement between owner of the land on which the easement would be created (“servient tenement”) and the owner of the land who benefits from the easement (“dominant tenement”). As any other agreement in law this agreement also requires consideration to be paid as a compensation. The particulars of the right of way need to be recorded on both the folio for the servient tenement and the folio for the dominant tenement.
An easement over a land can also be created by instrument under section 88B of the Conveyancing Act 1919. The section 88B requires lodgement of plan for the land setting out the easements, profits a prendre and restrictions.
Under Common Law, there have been cases where if the instrument creating easement did not expressly identify the lands the Court looked to the circumstances of the alleged easements to determine the appropriate land. This is different under the current legislation, it states that easement is not enforceable against a person unless instrument creating the dealing indicates that
the land to which the benefit of the easement is appurtenant;
the land subject to the burden of the easement;
party having the right to release or modify the restriction and the party whose consent to release or modification is stipulated.
It has been distinguished by the Court that the right of way are deemed to be clearly indicated when on the face of the instrument creating the easement, the right of way on the land burdened and benefited is identifiable without confusion or uncertainty.
Under the Conveyancing Act, short form expression could be used to describe the right of footway. In Part 1 of the Schedule 8 the term “right of footway” has been expressed as:
“Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.”
It is important to note also that if the easement is to contain positive obligation of a party to repair or maintain the right of footway needs to be noted together with easement.
 Real Property Act 1900 (NSW) s46
 Real Property Act 1900 (NSW) s47
 Conveyancing Act 1919 (NSW) s88B
 Re Maiorana and the Conveyancing Act  1 NSWR 627
 Conveyancing Act 1919 (NSW) s88 (1)
 Papadopoulos v Goodwin  1 NSWLR 413 at 417.