By registration of a dealing
Cross-easements for support may be created by reciprocal transfers and grant for support of a party wall on a common boundary of two parcels. The site of the party wall must be adequately defined in a plan of survey on public record and registered in NSW LRS. A composite notification quoting both transfer numbers will be entered on the certificates of title.
Under s.48 Real Property Act 1900, where an existing plan which was registered or recorded before 1 August 1996 shows a boundary between parcels as a 'party-wall', the registered proprietors of the parcels on either side of the wall may request the Registrar General to record cross-easements for support of the wall on those titles. The application should be made by lodgment of a suitable Request form 11R (PDF 131 KB) in NSW LRS. Success of the Request will depend on:
- satisfactory definition of the party wall, and
- consent of the relevant parties.
Plans registered since 1 August 1996 (commencement of Section 88BB Conveyancing Act 1919) must show the site as "proposed party wall" otherwise cross-easements will be automatically created.
By Section 181B Conveyancing Act 1919
Section 181B Conveyancing Act 1919 applies to instruments executed on or after 1 January 1931 and before 1 August 1996. It operates to create cross-easements for support in respect of walls either described in those instruments or referred to as party walls shown in plans registered or recorded before 1 August 1996. Assurances made on or after 1 August 1996 may still create cross easements under s.181B provided:
- they refer to plans registered or recorded before 1 August 1996
- the owner of the land upon which the whole wall was (or was to be) erected had the legal power to grant and reserve the mutual easements and actually transferred or conveyed one of the common parcels of land
- the transfer or conveyance or plan associated with it described the wall as a party wall, and
- the transfer or conveyance did not negate the creation of cross-easements.
The cross-easements are created and only come into effect upon registration of the transfer or conveyance which severs the common ownership of the parcels of land on each side of the wall.
By Section 88BB Conveyancing Act 1919
When a deposited plan registered after 1 August 1996 shows a boundary of a parcel, passing longitudinally through a wall, and is described as a 'party wall', cross-easements for support of that wall are automatically created on the titles for the parcels on either side of the wall. If the deposited plan is accompanied by an instrument under Section 88B Conveyancing Act 1919, there is no requirement for the cross easements to be referred to in either that instrument or in the statements panel on the plan.
Note 1 Where it is intended to create cross-easements over a party wall shown on the common boundary of a lot in a new plan with adjoining land, consent of the adjoining owner(s) and other interested parties will be required. If the plan is not appropriately signed or consent is not provided the lodging party should instruct the surveyor to show the site as proposed party wall. This will facilitate the creation of the cross-easement for support by transfer and grant at a later date. No notation will be entered on the title(s).
Note 2 These requirements also apply to easement plans intending to create cross-easements.
Note 3 Cross-easements may only be created pursuant to s.88BB where the common boundary of the parcels pass through some part of the structure of the wall, or along the face of the wall (provided the wall supports structures on either side).
Old System land
Where upon registration of a new deposited plan cross-easements are to be created for a party wall shown on a common boundary with adjoining Old System land, consent of the adjoining owner(s) and other interested parties is still required and a completed Statement of Title Particulars form (PDF 44 KB) must also be lodged. Conversion Action will be considered and where appropriate notifications will be entered on title.
As with Torrens title land, where the plan has not been appropriately signed or consented to, the lodging party should instruct the surveyor to show the site as proposed party wall on the plan. A notification will not be entered on the Torrens title(s).