Easements and 88B instruments explained — NSW property

The short version

An easement is a legal right to use part of a piece of land for a specific purpose, even though someone else owns it. A common one is a right of carriageway — the right to drive across a neighbour's land to reach your own. Another is a drainage easement — the right to run stormwater or sewer pipes under someone's yard.

Easements run with the land, not the owner. So when you buy, you inherit both the easements that benefit your property (rights you get over a neighbour) and the ones that burden it (rights others have over you). They don't disappear at settlement — they're part of what you're buying.

Where easements show up in a NSW contract

Two places, and you should read both:

• The title search (the folio). The certificate of title lists registered dealings, including easements affecting the lot. You'll see entries like "easement for drainage of water" referring back to a plan.
• The 88B instrument. This is the document that actually creates and describes the easements, restrictions and covenants set out on a deposited plan. It's named after section 88B of the Conveyancing Act 1919 (NSW). The plan shows where the easement sits; the 88B instrument explains what it is, who benefits and who is burdened.

The common types you'll see

• Right of carriageway. A right to pass over a defined strip of land — typically a shared driveway or a battle-axe block's access handle. If your block is at the rear, your access may depend on a right of carriageway over the front block.
• Easement to drain water / sewage. The right to run pipes through the land. You generally can't build over a drainage or sewer easement, which can quietly rule out the extension or pool you were planning.
• Easement for services. Electricity, gas or telecommunications infrastructure crossing the land, often benefiting a utility authority.
• Easement for support. Common on sloping or terraced sites — one lot has the right to be physically supported by a neighbour's land or retaining wall.

Restrictions and positive covenants

An 88B instrument doesn't only create easements. It can also impose:

• Restrictions on the use of land. For example, a covenant that no dwelling may be built closer than a set distance to a boundary, or that only one dwelling may be erected, or that fencing must be a particular type. These limit what you can do even if the council would otherwise allow it.
• Positive covenants. An obligation to do something — most often to maintain a structure such as an on-site stormwater detention (OSD) tank, a retaining wall or a shared driveway. A positive covenant can mean ongoing cost and responsibility.

Why it actually matters to you

Easements and covenants are easy to skim past because they read like boilerplate. But they decide real things:

• What you can build. You can't build over most drainage and sewer easements. A restriction might cap you at a single storey or push a setback well back from the boundary.
• Who can come onto your land. A right of carriageway or a services easement means someone else has a lawful reason to be on part of your property.
• Ongoing obligations. A positive covenant can leave you maintaining infrastructure at your own expense — sometimes shared with neighbours, sometimes not.

What to check before you sign

1. Read the 88B instrument in full. Don't stop at the title search summary. The instrument is where the burden, the benefit and the exact terms are spelled out.
2. Find each easement on the plan. Match every easement in the instrument to its location on the deposited plan, and overlay that against where you'd want to build, extend or landscape.
3. Watch for drainage and sewer easements under the building envelope. If an easement runs through the part of the block you'd want to develop, that's a material finding — not a footnote.
4. Check the sewer separately. A sewer main can cross the land even without a private easement. The Sydney Water sewer service diagram (a prescribed document in the relevant area) shows where the main sits relative to the building.
5. Read restrictions and positive covenants as if they bind you — because they will. Confirm anything you plan to do against them before you exchange.

Common questions

Can an easement be removed?

Sometimes, but it's not quick or guaranteed. An easement can be released by the benefiting party, or extinguished by a court or the Registrar-General in limited circumstances. Never buy assuming you'll be able to remove one later — buy on the basis that it stays.

Does an easement reduce the property's value?

It depends entirely on what the easement is and where it sits. A small services easement along a side boundary may have no practical effect. A drainage easement cutting through the only spot you could extend is a different story. The point is to understand it before you commit, not to assume it's harmless.

What's the difference between an easement and a covenant?

An easement is a right to use land for a purpose (crossing it, draining through it). A restrictive covenant limits what the landowner can do (build height, materials, number of dwellings). A positive covenant requires the owner to do something (maintain a structure). All three can sit in the same 88B instrument.