Conveyancing and Law of Property Amendment (Parking Easements) Act 1998
An Act to provide for parking easements and for related purposes
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
This Act may be cited as the Conveyancing and Law of Property Amendment (Parking Easements) Act 1998 .
This Act commences on a day to be proclaimed.
In this Act, the Conveyancing and Law of Property Act 1884 is referred to as the Principal Act.
The heading immediately preceding section 34A of the Principal Act is repealed and the following Part and Division headings are substituted: "PART VIA - EASEMENTS", "Division 1 - Easements generally"
5. Part VIA, Division 2 inserted
After section 34C of the Principal Act , the following Division is inserted in Part VIA:Division 2 - Parking easementsIn this Division –dominant tenement means land for the benefit of which a parking easement exists or is to be created;easement plan means a plan (which may, if the Recorder approves, form part of another plan) delineating the parking bay in which parking is authorised by a parking easement and delineating or describing the means of vehicular and pedestrian access to, and egress from, the parking bay;owner of land means the owner of an estate in fee simple in the land or the owner of a leasehold estate in the land;parking bay means the part of a servient tenement in which parking is authorised by a parking easement;proprietor of a parking easement means the person in whose favour the easement exists and, if the easement is created for the benefit of land, the owner of the dominant tenement;Recorder means the Recorder of Titles under the Land Titles Act 1980 ;sealed plan means a final plan approved and sealed under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;servient tenement means land subject to a parking easement;strata or community titles scheme means a plan or scheme under the Strata Titles Act 1998 ;vehicle means –(a) a vehicle for use on a road; or(b) a vehicle for use on a track; or(c) a vehicle for use on water; or(d) a vehicle designed to be wholly or partially airborne.34E. Nature of parking easement
(1) A parking easement is an easement conferring –(a) a right to park a vehicle in the parking bay delineated in the easement plan; and(b) a right of vehicular access to, and egress from, the parking bay by a means delineated or described in the easement plan; and(c) a right of pedestrian access to, and egress from, the parking bay by a means defined or described in the easement plan.(2) A parking bay may be defined by reference to boundaries in a horizontal plane or by reference to boundaries in both a horizontal and a vertical plane.(3) A parking easement may confer a right of exclusive occupation in respect of the parking bay.34F. Creation of parking easement
(1) Subject to the requirements of this Division relating to registration, a parking easement may be created in any of the following ways:(a) by deed;(b) as provided by section 105 of the Land Titles Act 1980 ;(c) by a schedule of easements under section 87 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ;(d) by a plan or scheme registered under the Strata Titles Act 1998 ;(e) in any other way approved by the Recorder.(2) A document under which a parking easement is created –(a) must comply with any requirements as to its form imposed by the Recorder; and(b) must set out the terms and conditions of the easement (although the document adequately complies with this paragraph if it uses a short form authorised by this Act); and(c) must consist of, incorporate or be supported by a plan in a form approved by the Recorder –(i) delineating the servient tenement and the parking bay and showing the position of the parking bay by reference to boundaries of the servient tenement; and(ii) delineating or describing the means of vehicular access to, and egress from, the parking bay; and(iii) delineating or describing the means of pedestrian access to, and egress from, the parking bay.(3) A parking easement cannot take effect unless the proposed use of the land for the parking of vehicles (and any related vehicular or pedestrian access) conforms with an approval under the Land Use Planning and Approvals Act 1993 .34G. Dominant and servient tenements
(1) A parking easement may, but need not, be related to a dominant tenement.(2) If a parking easement is related to a dominant tenement, the dominant and servient tenements need not be contiguous and a sufficient relationship exists between them if the parking easement is reasonably necessary for the lawful use or enjoyment of the dominant tenement (including a prospective use that has been approved under the Land Use Planning and Approvals Act 1993 ).(3) Unity of seisin in the dominant and servient tenements does not destroy a parking easement.34H. Conditions of parking easement
(1) A parking easement may be created on conditions –(a) prescribing the classes of persons by whom vehicles may be parked under the easement; or(b) prescribing the classes of vehicles that may be parked under the easement.(2) A parking easement may be created on conditions under which the easement operates for a specified period or periods or at specified times.(3) A parking easement may be created on conditions under which –(a) obligations of maintenance and repair are imposed on either or both parties to the easement; or(b) the proprietor of the easement is, or may be, required to pay charges or charges of a specified nature to the owner of the servient tenement; or(c) charges may be made for the parking of vehicles in pursuance of rights conferred by the easement; or(d) outstanding obligations are apportioned between the proprietor of the easement and the owner of the servient tenement on the termination or expiry of the easement.34I. Parking easement to run with land
(1) The benefits and burdens of a parking easement run with title to land.(2) The rights and obligations conferred or imposed under the conditions of the easement are enforceable by or against the owner for the time being of the servient tenement and, if there is a dominant tenement, the dominant tenement but, if not, the proprietor of the easement.(3) Despite subsections (1) and (2) , if a parking easement is created over a leasehold estate in the servient tenement –(a) the easement is not valid and binding against a mortgagee or encumbrancee of the servient tenement unless the mortgagee or encumbrancee has consented in writing to the easement; and(b) the parking easement terminates on the expiry or termination of the lease.34J. Variation of parking easement
(1) Subject to the requirements of this Division relating to registration, a parking easement may be varied by a document in a form approved by the Recorder evidencing agreement between the proprietor of the easement and the owner of the servient tenement to the variation.(2) A variation to create a new parking bay, or alter the boundaries of an existing parking bay, or alter the means of vehicular or pedestrian access to the parking bay cannot take effect unless –(a) the document making the variation consists of, incorporates or is supported by a plan in a form approved by the Recorder showing how the easement plan is affected by the variation; and(b) if the variation would change the use of land, the change of use conforms with an approval under the Land Use Planning and Approvals Act 1993 .34K. Termination of parking easement
(1) Subject to the requirements of this Division relating to registration, a parking easement may be terminated by a document in a form approved by the Recorder evidencing –(a) agreement between the proprietor of the easement and the owner of the servient tenement to the surrender of the easement; or(b) if the terms and conditions of the easement impose no obligations on the proprietor of the easement, the proprietor's unilateral agreement to surrender the easement.(2) If a parking easement was created for the benefit of a dominant tenement in order to conform with an approval under the Land Use Planning and Approvals Act 1993 for the development or use of the dominant tenement, a document to terminate the easement cannot take effect unless the proposed termination also conforms with an approval under that Act.(1) The creation, variation, expiry or termination of a parking easement is –(a) if the easement relates to land subject to the Land Titles Act 1980 , registrable under that Act; and(b) if the easement relates to land that is not subject to the Land Titles Act 1980 , registrable under the Registration of Deeds Act 1935 .(2) The Recorder may register the creation, variation, expiry or termination of a parking easement on lodgment of a document in a form approved by the Recorder creating, varying or terminating the easement or evidencing its creation, variation, expiry or termination and, in the case of land subject to the Land Titles Act 1980 , registration is to be effected on the folio for the servient tenement and, if there is a dominant tenement, the folio for the dominant tenement.(3) Subject to subsection (4) –(a) a parking easement over land subject to the Land Titles Act 1980 does not take effect until registration of creation of the easement; and(b) if a parking easement is registered, the variation, expiry or termination of the easement does not take effect until registered.(4) A parking easement created by lease for a term of 3 years or less –(a) is not registrable under the Land Titles Act 1980 ; and(b) takes effect without registration; and(c) terminates automatically on determination of the lease.(5) Before the Recorder registers the creation, variation or termination of a parking easement, the Recorder may require production of evidence of any necessary approval under the Land Use Planning and Approvals Act 1993 .(6) On registration of a variation to, or the expiry or termination of, a parking easement created by sealed plan or a strata or community titles scheme, the Recorder must, if it is appropriate to do so, amend the plan or scheme to reflect the variation, expiry or termination of the easement.
6. Section 84C amended (Discharge or modification of overriding interests)
Section 84C of the Principal Act is amended as follows:(a) by inserting the following subsection after subsection (1) :(1A) In the case of a parking easement, the appropriate tribunal may, by order, extinguish or modify the easement on any of the following grounds (which are in addition to those set out in subsection (1) ):(a) the servient tenement has been destroyed or has been rendered incapable of being used for the purposes of the easement;(b) the dominant tenement has been destroyed or has been rendered incapable of taking advantage of the parking easement;(c) the easement was created for a particular purpose that no longer exists;(d) the easement has expired or terminated, or has been terminated, under the conditions of the easement or under this Act.(b) by inserting the following subsection after subsection (7) :(7A) If a parking easement is extinguished, the tribunal may also order the owner of the dominant or servient tenement to compensate the other to the extent necessary to achieve an appropriate apportionment of the costs previously incurred in connection with the easement.
Schedule 8 to the Principal Act is amended by adding the following short and long forms:
Bus parking easement
The right to park a bus for carrying passengers who are employees, customers or other invitees of the proprietor of the easement in the parking bay shown on the relevant easement plan (whether or not the bus is also taking passengers to other destinations).
Customer parking easement
The right for the proprietor of the easement to permit customers, clients, visitors or other invitees to park their motor vehicles in the parking bays shown on the relevant easement plan.
Disabled parking easement
The right for the proprietor of the easement to permit invitees of any class who are entitled under the Traffic Act 1925 to use parking facilities provided for disabled persons to park motor vehicles in the parking bay shown on the relevant easement plan.
Employee parking easement
The right of the proprietor of the easement to permit employees or contractors to park their motor vehicles in the parking bays shown on the relevant easement plan.
Occupier parking easement
The right of the occupier of the dominant tenement to park a motor vehicle, or to permit another person to park a motor vehicle, in the parking bay shown on the relevant easement plan.
General parking easement
The right of any occupier of the dominant tenement, or any person authorised by such an occupier, to park in the parking bays shown on the relevant easement plan.
Service parking easement
The right of the proprietor of the easement to permit persons delivering goods, or providing services to the proprietor, to park in the parking bay shown on the relevant easement plan.
Vehicular access way
The right of the proprietor of a parking easement to use, or to permit others to use, the means of vehicular access delineated or described in the relevant easement plan for access to, and egress from, the parking bay shown on the plan.
Pedestrian access way
The right of the proprietor of a parking easement to use, or to permit others to use, the means of pedestrian access delineated or described in the relevant easement plan for access to, and egress from, the parking bay shown on the plan.
Combined access way
The right of the proprietor of a parking easement to use, or to permit others to use, the means of access delineated or described in the relevant easement plan for vehicular and pedestrian access to, and egress from, the parking bay shown on the plan.
[Second reading presentation speech made in:
House of Assembly on 30 APRIL 1998
Legislative Council on 27 NOVEMBER 1997]