Plan must show easements and other rights

In force

S. 12(1) amended by No. 47/1989 s. 6(2)(a)(b), substituted by No. 48/1991 s. 10(1).

(1)

A plan of subdivision or consolidation must specify—

(a)

existing registered easements that burden the land (other than easements over land referred to in subsection (2)(a)(i)(ii) or (iii)), the purpose of the easements and either the land benefited by the easements or, if they were authorised by or under an Act other than this Act or the Transfer of Land Act 1958, the public authority, Council, Minister or other person in whose favour they are created; and

(b)

proposed easements (other than easements over land referred to in subsection (2)(a)(i), (ii) or (iii)), the purpose of the easements and either the land which they are to benefit or, if they are authorised by or under an Act other than this Act or the Transfer of Land Act 1958, the public authority, Council, Minister or other person in whose favour they are to be created.

S. 12(1A) inserted by No. 48/1991 s. 10(1).

(1A)

A plan of creation, variation or removal of an easement must specify the easement to be created, varied or removed, the purpose of the easement and either the land benefited or to be benefited or, if the creation, variation or removal is authorised by or under an Act other than this Act or the Transfer of Land Act 1958, the public authority, Council, Minister or other person in whose favour the easement is or is to be created.

S. 12(1B) inserted by No. 57/1993 s. 7.

(1B)

If land is described in a folio of the Register or in an instrument or plan referred to in that folio as being affected by an easement but that folio, instrument or plan does not do all or any of the following—

(a)

describe the purpose of the easement;

(b)

specify the land benefited by the easement;

(c)

if the easement is created under an Act, specify the person or authority in whose favour it is created—

a plan must be taken to comply with subsection (1)(a) or (1A) (as the case requires) if it specifies the land burdened by the easement and any other information about the purpose or benefit of the easement appearing from that folio, instrument or plan.

S. 12(2) substituted by No. 47/1989 s. 6(2)(c), amended by No. 48/1991 s. 10(2)(a).

(2)

Subject to subsection (3), there are implied—

(a)

over—

(i)

all the land on a plan of subdivision of a building; and

(ii)

that part of a subdivision which subdivides a building; and

S. 12(2)(a)(iii) amended by No. 48/1991 s. 10(2)(b), substituted by No. 69/2006 s. 209.

(iii)

any land affected by an owners corporation; and

(iv)

any land on a plan if the plan specifies that this subsection applies to the land; and

S. 12(2)(b) amended by No. 48/1991 s. 10(2)(c).

(b)

for the benefit of each lot and any common property—

all easements and rights necessary to provide—

(c)

support, shelter or protection; or

(d)

passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or

(e)

rights of way; or

(f)

full, free and uninterrupted access to and use of light for windows, doors or other openings; or

(g)

maintenance of overhanging eaves—

if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property.

S. 12(3) substituted by Nos 47/1989 s. 6(2)(d), 48/1991 s. 10(3), 42/2017 s. 51(1).

(3)

A plan may provide that some, all or none of the easements and rights referred to in subsection (2) are implied as a burden or benefit over all or any of the land on the plan.

S. 12(3A) inserted by No. 48/1991 s. 10(3).

(3A)

Subsection (3) does not apply to—

(a)

any part of a plan that subdivides a building; or

(b)

easements or rights for existing services provided to a lot, if the lot and the land on which the service is located are not in common ownership.

S. 12(3B) inserted by No. 48/1991 s. 10(3), substituted by No. 42/2017 s. 51(2).

(3B)

There are implied over any road set aside on a plan, in favour of the appropriate responsible public authority or Council, all easements and rights necessary to provide passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission), if the easement or right is consistent with the reasonable use of the land as a road.

(4)

Any person, Council or referral authority entitled to use an easement can gain access to that easement over the common property and any lot for the purpose of using the easement and must repair any damage caused in gaining access to or using the easement.

S. 12(5) amended by Nos 47/1989 s. 6(2)(e)(i)(ii), 42/2017 s. 51(3).

(5)

If a plan is registered on which there is an easement the person entitled to use the easement is not required to repair damage to buildings or works constructed or located so as to interfere with the exercise of rights conferred by the easement if reasonable care is taken in gaining access to and using the easement.

S. 12(6) inserted by No. 47/1989 s. 6(2)(f), amended by No. 48/1991 s. 10(4)(a)(i)(ii).

(6)

If an easement in favour of a public authority, Council, Minister or other person is specified on a plan, subsection (2) does not operate to imply an easement or right for that person for the same purpose.

S. 12(7) inserted by No. 47/1989 s. 6(2)(f).

(7)

This section does not prevent the exercise of rights conferred by—

S. 12(7)(a) amended by No. 48/1991 s. 10(4)(b)(i)(ii).

(a)

an easement created in favour of a public authority, Council, Minister or other person otherwise than under this Act or the Transfer of Land Act 1958; or

S. 12(7)(b) amended by No. 48/1991 s. 10(4)(b)(i)(ii).

(b)

an agreement to create an easement in favour of a public authority, Council, Minister or other person made under an Act other than this Act or the Transfer of Land Act 1958.

S. 12(8) inserted by No. 47/1989 s. 6(2)(f).

(8)

The easements specified on a plan or implied by subsection (2) are in addition to easements under section 98(a) of the Transfer of Land Act 1958.

S. 12(9) inserted by No. 47/1989 s. 6(2)(f).

(9)

Section 98(b) of the Transfer of Land Act 1958 does not apply to a plan registered under this Act.

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12 Plan must show easements and other rights