Key Takeaway Points
- Titles Queensland is no longer requisitioning easements in favour of a Local Authority that include access rights outside of an easement area.
- The requisitions which have been issued unnecessarily delayed the registration of various document packages.
- Any variations which were agreed to until Titles Queensland reversed their position have resulted in an ongoing administrative burden for parties.
Titles Queensland has reversed its position that an easement in favour of a Local Authority could not contain any rights of access outside of an easement area.
Titles Queensland has recently been requisitioning easements which are granted on ‘standard terms’ (and which were previously routinely recorded on the Register) on the basis that they give limited access rights to land outside of an easement area.
The requisitions which were being issued caused unnecessary delays in the registration of various document packages. These types of delays can be costly for developers when (for example) they delay the registration of a plan of subdivision and the subsequent sale of the ‘off-the-plan’ lots created by that plan.
We were very surprised by these requisitions, as the grant of limited access rights to areas outside of the area burdened by an interest (such as easements, leases etc) is well established and commonly used. For example, a lease of retail shop in a shopping centre may:
• give the tenant the right to access and use ‘common areas’ within the shopping centre but outside of the boundaries of the retail shop (such as walkways, bathrooms etc); and
• include a licence to use other areas (such as seating areas, carparks, storage areas etc).
We confirmed (in investigating the position previously adopted by the Registrar of Titles) that these type of limited access rights had been included in registered easements for decades.
The requisitions which were being issued did not give any legislative grounds as to why the beneficiary of an easement could not be given limited rights under an easement to use land outside of the easement area, and we were not aware of any legislative changes which triggered the change in the Registrar of Titles’ position.
We therefore questioned the requisitions that were being issued with Titles Queensland, as the Registrar of Titles must register an instrument (such as an easement) under section 30 of the Land Title Act 1994 (Qld) (LTA) if:
• the person who lodges the instrument complies with the requirements of the LTA for its registration; and
• the instrument is not inconsistent with another Act or law.
After going back and forward with Titles Queensland on this matter, we have now been advised that:
• Titles Queensland will not question these types of clauses in the future; and
• any similar clauses contained in the covenants to an easement in favour of a public utility provider (such as a local government) will not be the subject of a requisition.
While this response is in our view correct, it does not mitigate the fact that ‘standard’ easement terms have been varied while this matter was being resolved to mitigate the delays that were arising in the registration of document packages. This may result in further issues arising in the future and has created an ongoing, unnecessary administrative burden for various parties.
Next steps
Our Property team is happy to assist if you have any queries about the preparation and registration of easements with Titles Queensland.
