NSW Can a Form 11r be Used to Request an Easement?

[Jano]

Hi, we are in NSW. Our property's stormwater drainage pipe runs through our rear neighbour's property. We only discovered the pipe when we started renovations in January this year; we believed previously that all water was going down the sewer. We don't know how old the pipe is except to say that our property is turn of the last century and the sub division for the house behind us was not created until the 1950's.

We are unable to find any evidence that an easement was ever registered but we have discovered that the opportunity for this to be rectified has been overlooked / ignored by the council on three separate occasions of development over the years since subdivision.

The council, of course, want us to have an easement for our development and the neighbours are saying no. They are tapped into the pipe in three places. The pipe runs within a metre of one of their boundaries and the easement would be 4 meters long until it leaves their property (a battleaxe). The affected land cannot be built on as it's too close to the boundary.

I have heard that a Form 11r can be lodged with Land Titles to request adjudication of the easement. Is that true under property law?

 

[Tracy B]

Hi Jano,

It's best to speak with a property lawyer about this, especially if your land is old. Easements is a complicated area of law (there are many ways to create an easement). Once an easement is created/recognised, you can then register the easement with the General Register of Deeds via Form 11R.

From my (limited) understanding, you can argue for the existence of an easement by:

• Having one created by statute (e.g. pipelines in developments after 1989);
• Court order (you will need to apply to court with or without Form 11R and the signature of the Registrar General first); or
• Under general law (through case law and recognised principles): e.g. easement created by continued and long usage of the land in one way/pattern.

Each method requires a different procedure and evidence/documents.