New plans
An easement can be created over the entirety of a lot in a new deposited plan by inclusion in the Section 88B Instrument in the usual manner. Examples include:
- easements for support and services over the entirety of a parcel to be subdivided in stratum as to various parts of a building
- new lots created solely to define the sites of rights of carriageways (with the fee either remaining with the developer or transferred to the local council).
The instrument must clearly indicate that the site of the new easement comprises the entirety of the parcel, e.g:
Lots Burdened
2 (Entire Lot)
A similar statement should be added to the face of the plan, e.g:
'(A) RIGHT OF CARRIAGEWAY (ENTIRE LOT)'
and
A notification will be added to the affected certificate(s) of title in the form:
'........ AFFECTING THE WHOLE OF THE LAND ABOVE DESCRIBED'
Existing plans
Where the sole purpose of a new plan is to create an easement over the whole of an existing lot (or lots) the plan and Section 88B Instrument must meet the following criteria:
- The plan must clearly depict the land affected as being lots in an existing plan or plans.
- The plan heading must refer to the existing lots and plans being affected.
- The plan must not attempt to redefine the lots. The dimensions of the lots should NOT be shown and the plan should bear a statement:
'NOTE: FOR LOT DIMENSIONS SEE DP.............'
- The Subdivision Certificate must be ruled through.
- Reference to the Surveyors (Practice) Regulations must be deleted from the Surveyors Certificate as per a compiled plan.
The s.88B Instrument must clearly indicate the lots and plans burdened and benefited for every easement being created and show the appropriate reference to title for each lot. A statement should be included to confirm that the easement affects the entirety of the parcel, e.g:
Lots Burdened
2/123456 (Entire Lot)
A similar statement should be added to the face of the plan, e.g:
'(A) RIGHT OF CARRIAGEWAY (ENTIRE LOT)'
and
A notification will be added to the affected certificate(s) of title in the form:
'........ AFFECTING THE WHOLE OF THE LAND ABOVE DESCRIBED'
Note Restrictions on the Use of Land, Positive Covenants and Profit à Prendre affect the entirety of the land unless specifically stated otherwise.