The Registrar General may cancel an easement recorded in the Register on the basis that it has been abandoned (see s.49(1) and (2) Real Property Act 1900). An easement may be treated as abandoned if the Registrar General is satisfied that it has not been used for at least 20 years. Prior to cancelling the recording, the Registrar General must:
- serve notice in writing on the person(s) having a registered estate or interest in the land benefited by the easement, and
- consider any submissions made by the party within one month of the date of service of the notice.
Note Easements in gross (i.e. those which do not benefit land) or easements in favour of the Crown, or a public or local authority constituted by an Act, are not capable of being cancelled by abandonment.
An application for cancellation due to abandonment must be made on a Cancellation of Recording of Abandoned Easement form 20EA (PDF 585 KB) and be supported by statutory declarations from the applicant and as many disinterested witnesses as practicable, as to the non-use of the easement.
If the easement cannot be used because of buildings or other obstructions erected on the site a declaration from a registered surveyor, and a sketch showing the location of such obstructions in relation to the easement, should be provided. The declarants should state:
- their means of knowledge of the matters contained in the declaration
- the length of non-use of the easement that they have personally observed
- the date that the easement ceased to be used, and any circumstances relevant to that cessation
- particulars of any structures erected on the site of the easement, or other factors which make the easement physically unusable
- when and by whom such structures were erected
- whether they know of any litigation involving the subject easement and, if so, the nature and result of the litigation.
All facts should be given with as much detail as possible.
All declarations should be signed on each page by the declarant and the person taking the declarant's declaration.