New South Wales Consolidated Acts

REAL PROPERTY ACT 1900 - SECT 47

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.

(2) An 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.

(3) An 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.

(4) On 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.

(5) The 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 1919 .

(5B) The dealing effecting the variation and the plan, if any, must be-

(a) executed by the registered proprietor of the land benefited and the land burdened by the affecting interest, and

(b) accompanied by the written consent of every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge recorded in the folio of the Register for the land.

(5C) The 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.

(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 [10] to the Property Legislation Amendment Act 2005 .