Part 8Easements

Part 8—Easements 81—Certificates may contain statement of right-of-way or other easement Any certificate hereafter issued may contain a statement therein or thereon to the effect that the land therein described has appurtenant thereto any easement, or that the person therein named is entitled to any easement in gross, or that the land therein described is subject to any right or rights-of-way or other easement. 82—Description of easement Every such statement or entry shall fully set forth a true and accurate description of the easement, or, if the instrument creating the same be enrolled or deposited in the General Registry Office, or deposited in the Lands Titles Registration Office, shall refer to such instrument. 83—Registered proprietor not to be subject to rights-of-way not mentioned in certificate The registered proprietor of land brought under the provisions of the Real Property Act of 1861 after the passing of the Rights-of-Way Act 1881 or of land hereafter brought under the provisions of this Act shall be deemed to hold the land comprised in the certificate of such land subject to such rights-of-way only as are mentioned and set forth in such certificate. 84—Easement not binding on registered proprietor subsequently acquiring land bona fide for value unless entered on certificate of title No easement hereafter created by express grant or transfer over or in respect of any servient land under the provisions of this Act shall be binding on any registered proprietor subsequently taking the land bona fide for valuable consideration, unless such easement shall be entered on the certificate of such land. 85—Land to be held free of rights-of-way The registered proprietor of any land shall, as from the eighteenth day of November, 1886, hold the same freed and discharged from all rights-of-way existing on or before that date and not entered upon the certificate of such land in pursuance of an application made on or before such date under the Rights-of-Way Act 1881. 86—Public rights-of-way etc not within this Act Rights-of-way or other easements now or hereafter acquired or enjoyed by the public in, over, along, or across any servient land shall not be deemed to be rights-of-way or easements within the meaning of this Part of this Act, or in respect of which applications may be made or caveats entered, and nothing herein contained shall derogate from any such rights or easements, or be deemed to confer on the registered proprietor of any such servient land a right to interfere with or obstruct the public use of any way or other easement so acquired or enjoyed as aforesaid. 87—Certificates heretofore issued conclusive evidence of right-of-way therein described Every certificate issued before the eighteenth day of November, 1881, containing therein a statement to the effect that the registered proprietor is seized of the land therein described, subject to or together with any right-of-way therein described or delineated, or together with any easement therein described, shall be deemed to operate as a grant or reservation, as the case may be, of such right-of-way or other easement, and such certificate shall, except in the case of fraud, be received in all Courts as conclusive evidence of the existence of such right-of-way or other easement: Provided that this section shall not apply to any right-of-way or other easement, the title to which is now the subject of pending litigation in any Court of Law, or to any right-of-way or other easement, the right to which has been concluded in any Court adversely to such right-of-way or easement. 88—Entry as to easement to be made on certificates of title Whenever any right-of-way or other easement appurtenant to land under the provisions of this Act over land also under its provisions shall hereafter be granted or created, the Registrar-General shall make such entry on the certificates of title for the dominant and servient lands as he or she thinks fit. 89—Short form of describing right-of-way The words "a free and unrestricted right-of-way" in any instrument shall be deemed to imply the words set forth in Schedule 5 hereto so far as they shall be applicable as fully and effectually as if set out at length in such instrument. 89A—Incorporation of long forms of easements in instruments Where, in an instrument, a short form set out in Schedule 6 is used to grant or create an easement the instrument shall, unless the contrary intention appears, be deemed to incorporate the corresponding long form of that easement set out in the Schedule. 90—Deposit of plan showing rights-of-way (1) Any registered proprietor of any land may deposit with the Registrar-General a plan of subdivision of the said land, showing the rights-of-way intended to be created by such proprietor over such land, and every subsequent registered proprietor of the said land, or any part thereof, shall be entitled to a right-of-way over all the rights-of-way shown in such plan, unless otherwise declared in his certificate. (2) Subsection (1) shall not apply to a plan of subdivision deposited with the Registrar‑General after the commencement of the Real Property Act Amendment Act (No. 2) 1985. 90A—Application of sections 90B, 90C, 90D, 90E and 90F (1) Sections 90B, 90C, 90D and 90E apply to, and in relation to, an easement whether the dominant and servient land are under the provisions of this Act and the easement has been entered on a certificate of title under this Part or not and whether the easement is created by instrument or by operation of a provision of this Act or some other Act or by operation of some other law. (2) Section 90F only applies to, and in relation to, an easement if the dominant and servient land are under the provisions of this Act. 90B—Variation and extinguishment of easements (1) Subject to this section, the Registrar-General may on application (in a form approved by the Registrar-General) by the proprietor of the dominant or servient land or on the Registrar-General's own initiative— (a) vary the position of, or extend or reduce the extent of, an easement over servient land; or (b) vary an easement by extending the appurtenance of the easement to other land owned by the proprietor of the dominant land; or (c) extinguish an easement. (2) Subject to this section, the Registrar-General must not act under subsection (1) except on the application, or with the written consent, of the proprietor of the dominant land and the servient land and with the written consent of all other persons who— (a) in the case of land under the provisions of this Act—appear from the Register Book to have, or to claim, an estate or interest in the dominant or servient land; (b) in the case of land that is not under the provisions of this Act—are known to the Registrar‑General (or who become known to the Registrar-General after making reasonable enquiry) to have, or to claim, an estate or interest in the dominant or servient land. (3) The Registrar-General may dispense with the consent of the proprietor of the dominant or servient land required by subsection (2) if the Registrar-General is satisfied that— (a) notice complying with subsection (3e) has been given to the proprietor; and (b) 28 days has passed since the notice was given; and (c) the proprietor's estate or interest in the dominant or servient land will not be detrimentally affected by the proposed variation or extinguishment of the easement. (3a) The Registrar-General may dispense with the consent of a person required by subsection (2) (other than the proprietor of the dominant or servient land) if he or she is satisfied that the person's estate or interest in the dominant or servient land will not be detrimentally affected by the proposed variation or extinguishment of the easement. (3b) Without limiting the generality of subsection (3) or (3a), where— (a) the original purpose of a right-of-way was to provide access to the dominant land to which it is appurtenant; and (b) the right-of-way can no longer be exercised by the proprietor of that land for that purpose because the land has subsequently been separated from the right‑of‑way by the creation of intervening allotments, the Registrar-General may extinguish the right-of-way without the consent of a person required by subsection (2) if he or she is satisfied that there is no reason to believe or suspect that the proprietor of that land, or a successor in title of the proprietor, has any reasonable prospect of using the right-of-way for access to that land in the future. (3c) Without limiting the generality of subsection (3) or (3a), where dominant land is separated from a right-of-way appurtenant to the land by intervening land and the Registrar-General is satisfied that the continued existence of the right-of-way would not enhance the use or enjoyment of the dominant land, he or she may extinguish the right-of-way without the consent of a person required by subsection (2). (3d) Before taking action under subsection (3b) or (3c) the Registrar-General must be satisfied that— (a) notice complying with subsection (3e) has been given to the proprietor of the dominant land; and (b) 28 days has passed since the notice was given. (3e) The notice referred to in subsections (3) and (3d) must— (a) be approved by the Registrar-General; and (b) include details of the proposed variation or extinguishment of the easement; and (c) invite the person to whom it is given to make representations to the Registrar‑General in relation to the proposal within 28 days. (4) The Registrar-General may extinguish an easement under subsection (1) without the consent of a person required by subsection (2) if— (a) — (i) in the opinion of the Registrar-General it is not reasonably practicable to ascertain the identity or whereabouts of that person; and (ii) the Registrar-General is satisfied that the proprietor of the dominant land has ceased to exercise the rights conferred by the easement; and (b) the Registrar-General has published notice of his or her intention to act under subsection (1) in the Gazette and in a newspaper circulating generally throughout the State; and (c) where the person's identity is known—the Registrar-General has sent notice of his or her intention to act under subsection (1) by post addressed to the person at his or her last address known to the Registrar-General; and (d) at least 21 days has elapsed since— (i) notice was published under paragraph (b); and (ii) where paragraph (c) applies, notice was posted under that paragraph. (6) Subject to subsection (7), the proprietor of dominant land cannot transfer or convey the land without the easement that is appurtenant to it. (7) The proprietor of dominant land or of some part of it may transfer or convey part of the land without the appurtenant easement if rights under the easement continue in existence in respect of some other part of the dominant land. (8) The easement is extinguished in respect of land transferred or conveyed under subsection (7). (9) Where, in the opinion of the Registrar-General, the creation or continuance of an easement was, or was likely to have been, a requirement on which— (aa) the issue of a certificate by the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016; or (a) the issue of a certificate by the Development Assessment Commission under section 51 of the Development Act 1993; or (b) the issue of a certificate by a council or the South Australian Planning Commission under Part 19AB; or (c) the approval of an application for the deposit of a strata plan by the South Australian Planning Commission or a council; or (d) the consent or approval of an authority under a corresponding previous enactment, was based— (e) the easement cannot be varied or extinguished under this section; and (f) the appurtenance of the easement cannot be extended to other land under this section; and (g) the easement cannot be merged with the servient land by transfer or conveyance of the easement to the proprietor of the servient land or the transfer or conveyance of the servient land to the proprietor of the easement; and (h) part of the dominant land cannot be transferred or conveyed separately from the easement thereby extinguishing the easement in respect of that land, without the consent of the Development Assessment Commission. (10) Upon the variation or extinguishment of an easement under this section the Registrar‑General must make such consequential entries in the Register Book or such entries in the records of the General Registry Office as he or she considers necessary. (11) A reference in this section to dominant land includes a reference to an easement that is not appurtenant to any land. (12) This section is subject to and does not derogate from any other Act relating to the variation or extinguishment of easements of a particular class. 90C—Easement and servient land may be vested in same person (1) Subject to this section, a person may be the proprietor of an easement and the servient land that is subject to the easement and accordingly a person may grant an easement to himself or herself. (2) Subject to this section, if an easement and the servient land are vested in the same person by transfer or conveyance the easement will not merge with the servient land unless the transfer or conveyance expresses the intention that it should do so. (3) An easement is extinguished by the amalgamation of the dominant and servient land under Part 19AB Division 3. (4) Where the whole or part of the land within the boundaries of an easement is amalgamated with the whole or part of the dominant land by the reconstitution of allotment boundaries upon deposit of a plan of division in the Lands Titles Registration Office, the easement is extinguished insofar as it extended over the amalgamated land. 90D—Survey of easement Before registering an instrument creating or varying an easement, the Registrar‑General or the Registrar-General of Deeds may require the parties to the instrument to lodge a survey prepared by a licensed surveyor that delineates the boundaries of the easement. 90E—No private right-of-way over public street or road (1) A private right-of-way cannot subsist over a public street or road and accordingly— (a) a private right-of-way cannot be granted, reserved or otherwise created over a public street or road; and (b) upon land becoming a public street or road all private rights-of-way over the land are extinguished; and (c) all private rights-of-way existing over public streets or roads immediately before the commencement of the Real Property (Miscellaneous) Amendment Act 1994 are extinguished. (2) Subsection (1) extinguishes a right-of-way only in respect of land that is a public street or road and the right-of-way remains in force in respect of other land (if any) that is subject to it. (3) In this section— a public street or road means— (a) a public street or road within the meaning of Part 17 of the Local Government Act 1934; (b) a thoroughfare vested in a council, an authority or the Crown by section 223LF or by a corresponding previous enactment; (c) a public road referred to in section 27CA of the Highways Act 1927, that the public is entitled to use as a street, road or thoroughfare. 90F—Easement subject to existing mortgage etc If, when an easement is created over servient land, the dominant land, or any part of it, is subject to a mortgage or an encumbrance, the easement is also subject to the mortgage or encumbrance if— (a) the instrument granting the easement provides that it is subject to the mortgage or encumbrance; and (b) the mortgagee or encumbrancee has endorsed his or her consent to that on the instrument.