The Land Transfer Act 2017 and Land Transfer Regulations 2018 introduced changes to the classes of easements to which implied rights and powers apply.
There has been some confusion specifically about what used to be the ‘right to convey telecommunications and computer media’.
What has changed?
The language in the Land Transfer Regulations 2018 has been modernised by replacing the phrase ‘a right to convey telecommunications and computer media’ with ‘a right to convey telecommunications’. The subject matter covered by this class of easement remains the same.
What do practitioners need to do differently?
Generally, it is no longer necessary to refer to ‘telecommunications and computer media’ when drafting an easement in Form 22. For these implied rights to apply, a ‘right to convey telecommunications’ is all that is required.
The exception to this is if you are giving effect to a memorandum of easements in a plan that was prepared prior to commencement of the Land Transfer Act 2017 – so a right to convey telecommunications and computer media is required. In that case, you might like to consider adding a clause to the easement along the lines that ‘the implied rights and powers to convey telecommunications under Schedule 5 of the Land Transfer Regulations 2018 apply to Computer Media’.
Surveyors are moving from using the old language to simply record ‘a right to convey telecommunications’ on plans.
For an Easement registered under the Land Transfer Act 1952 transitional provisions the Easement Instrument can still refer to the Land Transfer Regulations 2002. This means that the easement can still be drafted as a ‘right to convey telecommunications and computer media’.
Where implied rights and powers are used, it is necessary to explicitly refer to the correct class of easement (found in Schedule 5 clause 2 of the Land Transfer Regulations 2018). Internal practices have now been updated so that we will not requisition an easement to require specific terms and conditions for Computer Media, where the words ‘computer media’ accompany the right to convey telecommunications.