WA Help with Easement and Property Law Queries

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Lucy Lu Smith

Well-Known Member
17 November 2018
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Yes, the deed does say that however the easement is created both by the deed and by a deposited plan. Not that it matters but the easement by the plan was created first, then the easement by deed. The 9th schedule of the Transfer of Land Act is clear that conditions imposed by a deed cannot trump (sorry I can't remember the legal term) conditions imposed by a plan.

The conditions of the plan are for the right of carriageway by easement. So although the deed states the easement can be terminated, the plan requires an easement for right of carriageway and the 9th schedule demands that carriageway endures.
 

Rod

Lawyer
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27 May 2014
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I suspect you need legal advice. While in general legislation trumps private contracts, agreements, and deeds, this is not always true.

My opinion of s65 and the ninth schedule indicates the deed can, and likely does, take precedence over the Transfer of Land Act WA because s 65 makes provision for this circumstance. This also makes logical sense (not always true in law) in that deeds can be more comprehensive and spell out in greater detail how the grant of easement is to work in practice between owners without being subject to the limitations in the TLA.

Disclaimer: See my signature and note I have not studied law in WA.
 
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Rod

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27 May 2014
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Just to be clear - I'm not commenting on the plan vs deed.
 
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