New South Wales Consolidated Acts

STRATA SCHEMES (LEASEHOLD DEVELOPMENT) ACT 1986 - SECT 9

9 Easements in certain leasehold strata schemes

(1) In this section:
"drainage" includes the product of rain, storm, soakage, a spring or seepage.
"service" means a water, sewerage, drainage, gas, electricity, oil, garbage, conditioned air or telephone, television or radio impulses or signals service or any other prescribed service.

(2) Where:

(a) a stratum parcel is the subject of a leasehold strata scheme or a former stratum parcel has become a parcel within the meaning of the Strata Schemes (Freehold Development) Act 1973 ,

(b) an instrument has or has had the effect of creating after the commencement of this Act a right of vehicular access, a right of personal access or an easement for a specified service, over or through or as appurtenant to the stratum parcel, former stratum parcel or parcel, or the land comprised in that parcel or former parcel, and

(c) the site of the easement is identified on a plan lodged in the office of the Registrar-General,

the rights and obligations conferred or imposed by the easement created by the instrument shall be as specified in Schedule 1, except in so far as those rights or obligations may have been varied or negatived under this section or in the instrument.

(3) Nothing in section 88 of the Conveyancing Act 1919 or in subsection (2) (c) requires the site of an easement for a service, being an easement to which this section applies, to be identified on a plan lodged in the office of the Registrar-General.

(4) The terms of an easement created pursuant to subsection (2) in so far as they relate to:

(a) responsibility for maintaining in good order or repairing the access or other things required for enjoyment of the easement, or

(b) the proportions in which the persons having the benefit or burden of the easement are liable to contribute towards the cost of maintaining in good order or repairing that access or those things,

may be varied by memorandum of variation in the approved form and registered under the Real Property Act 1900 as if it were a dealing.

(5) A variation of the terms of an easement referred to in subsection (4) must be executed by every person having an estate or interest registered under the Real Property Act 1900 in the land benefited or burdened by the easement.

(6) On the application of any person who has an estate or interest in any land which has the benefit or burden of an easement to which this section applies, the Supreme Court may, by order, vary the terms of the easement in so far as they relate to:

(a) responsibility for maintaining in good order or repairing the access or other things required for enjoyment of the easement, or

(b) the proportions in which the persons having the benefit or burden of the easement are liable to contribute towards the cost of maintaining in good order or repairing that access or those things.

(7) An order under subsection (6) shall, when registered as provided by subsection (8), be binding on all persons, whether of full age or capacity or not, then entitled or later becoming entitled to the easement, and whether those persons are parties to the proceedings or have been served with notice or not.

(8) The Registrar-General shall, on application made in a form approved under the Real Property Act 1900 , make all necessary recordings in the Register for giving effect to the order.