Drafting of easements or covenants

CBP has extensive experience in drafting easements and covenants, especially through the subdivision process. Our expertise extends to drafting compulsorily acquired easements under section 88K and various other easements and covenants for the purposes of subdivision.

In addition to drafting easements and covenants required for specific purposes, there are a variety defined under statute that can be incorporated into transfers or section 88B Instruments simply by reference.

Compulsory acquisition of easements and the extinguishment of easements by court order

As we act for a large number of property developers we have taken a close interest in the recent developments for obtaining statutory easements. Prior to amendments to the Conveyancing Act, if a developer required an easement over an adjoining site to undertake a development, they had to negotiate for that right. This gave adjoining owners an opportunity to exploit the developer's needs by demanding unreasonable compensation or refusing consent altogether.

To facilitate development the state government enacted section 88K of the Conveyancing Act to allow the Supreme Court to grant easements where it is reasonably necessary for the use or development of land. Easements granted to date have included easements for access, easements for services and easements for construction, such as for swinging cranes and temporary scaffolding.  We have been involved in several significant cases in this developing area of the law.

It is now well established that where there is a good case for an easement, the easement will be granted. As the case law has built up, adjoining owners, who may have initially sought to exploit the situation, will usually settle the claim for the grant of an easement when given proper legal advice. However, if litigation is required to secure a court order, CBP has the expertise.

Extinguishment and variation of easements or covenants

There are legislative procedures that allow easements or covenants that are archaic or no longer capable of performance to be removed from title both administratively and by Court order. CBP can advise on all issues relating to easements and covenants including creation, variation and extinguishment.