Easements & Section 88B

Know How Easements Affect Your Use of Land

For any Plans of Subdivision, or for Strata and Stratum Plans which create easements or impose some restrictions in the use of the land, Section 88B of the Conveyancing Act 1919 states that an instrument outlining these benefits and/or restrictions must be lodged with the relevant Plan.

A Section 88B Instrument is commonly included in an “off-the-plan” contract. This document sets out any easements, restrictive covenants, positive covenants, rights of way, etc. affecting the land, building and/or units within the building and the property to be constructed.

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For example, there may be an on-site storm water detention tank located on the common property of the building which the local Council requires be maintained and repaired by the Owner’s Corporation. The Section 88B Instrument would include the terms of those requirements and note Council’s rights in circumstances where those requirements are not complied with.

In another example, there may be a sewer pipeline which runs along the rear of several properties in a new subdivision. In this case, each party would be relying on its neighbour to allow it to drain its sewerage through the section of the pipeline which runs through the neighbour’s property. In this way, the Section 88B Instrument would set out the consent of each party and each party’s rights and obligations as to repairs and maintenance.

 

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When considering any draft Section 88B Instrument attached to an “off-the-plan” contract it is important to note any restrictions or covenants, etc. affecting the property which you are purchasing and whether you are agreeable to those restrictions or covenants. Usually, these cannot be amended by the Vendor as they form part of Council’s requirements so if you are strongly opposed to any of the terms they contain it may be this is not the property for you. Proper and clear advice from the outset is critical.

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