Easements and rights of way make up the majority of benefits and burdens affecting land registration parcels. The following are general rules which apply to easements being added on an AFR or on a revision or correction form (Form 24 or 6A).
All easements which appear in a parcel description must also be present in the parcel register. This may be in the benefit or burden section (as applicable) or may be in the form of a textual qualification (TQ).
Note: TQs which qualify the fact that the easement "may exist" or that the parcel "may be subject to" or "possible easement in favor of...", etc are not included in the certification of the lawyer and must not appear in the parcel description. See Textual Qualifications on AFRs.
Easements must be rejected if the grantor of the easement is not currently a registered owner of an affected parcel.
Note: When multiple forms are submitted together, staff must ensure that the grantor appears as an owner on a PID listed on one of the forms (24 or 6A).
Any new benefit or burden being added that affects a land registration parcel must include the necessary forms to complete the flip side of the relationship; Form 24 (LR parcel) or 8A with Form 44 (for notice only). If a grant of easement or statutory declaration is being recorded that affects Non-LR parcels, then a Form 8A is not required and the original document must also be attached to a Form 44 so that it will be recorded under the Registry of Deeds system.
A Form 44 may still be accepted with a grant of easement or similar document under the traditional registry without the requirement for a second document or form. This would be appropriate when both the dominant and servient tenement PIDs are non-LR.
Note the following guidelines;
An easement or right of way which is openly used and enjoyed is considered to be an “overriding interest” under clause 73(1)( c) of Land Registration Act;
In order to record an easement as an overriding interest the submitter must first establish the basis of the easement- i.e. that it is granted, obtained by implication (necessity) or by prescription.
In addition to the foundation documents required to establish the basis for the easement, evidence must be placed on the record to support the facts that the easement is openly and enjoyed. This would generally be in the form of the necessary statutory declarations.
An easement which is based upon prescription will not be accepted as openly used and enjoyed if the submitter is attempting to burden a land registered parcel, unless the requirements of Sections 74 and 75 of the LRA have been met; that a court order has been issued or the consent of the burdened owner has been obtained.
An interest that is being added to an LR parcel as a burden is not acceptable unless;
the owner has executed the easement document that conveys or evidences the interest, or;
the consent of the owner has been obtained and a written consent has been attached to the easement document; or
it is being added by an order of the court confirming the interest