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LAND LAW 1 Dealings part 3 easements

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  • AreejTorla areej@iium.edu.my
  •  An easement is a right either to do something, or to use something, over another persons land.
  •  Although there are many other easements, the most common are:  (1) rights of way; (2) rights to light; (3) rights in respect of water; and (4) rights to support;
  •  Example of a positive easement: Right of way  Example of a negative easement:The right to light  a person had a right to the natural sunlight which comes into their property.  Thus, generally speaking, a property owner  cannot build a structure which would block their neighbour's incoming flow of natural sunlight.
  •  Re Ellenborough Park [1956] laid out certain ground rules for establishing a new easement:  (a) there must be a dominant tenement and a servient tenement; (b) the easement must accommodate the dominant tenement; (c) the dominant and servient tenements must be owned by different persons; and (d) the easement must be capable of forming the subject matter of a grant.
  •  Section 282. Meaning of "easement".  (1) In this Act "easement" means any right granted by one proprietor to another, in his capacity as such and for the beneficial enjoyment of his land, in accordance with the following provisions of this Chapter.
  •  The requirements of an easement laid down in Re Ellenborough Park was later followed by Tam Kam Cheong v Stephen Leong [1980] 1 MLJ 36.  SallehAbbas FJ stressed that for a claim of easement to be established, every easement must possess these four characteristics.
  •  Lee ChuanTum  Only the registered proprietor may create an easement, not the chargee or lessee.
  •  Section 283  any right to do something in, over or upon the servient land; (refers to positive easement) and  any right that something should not be so done. (refers to negative easement)  Does not include-  any right to take anything from the servient land; or  any right to the exclusive possession of any part thereof.
  •  Provided that nothing in paragraph (b) shall prevent the existence as an easement of any right involving the placing and maintaining in or upon the servient land of any installations or other works.
  •  The only way to create an easement under the NLC is by way of an expressed grant.
  •  The court laid down the principle:  “It makes it incumbent for the granting of easement by expressed grant and as provided by section 286, such grant can only be made with the agreement of the proprietor of the servient tenement and effected by way of executing an instrument in Form 17A”.
  •  Section 284(1)  No right in the nature of an easement shall be capable of being acquired by prescription  (that is to say, by any presumption of a grant from long and uninterrupted user).
  •  Acquiescence is not sufficient.
  •  Facts:  A septic tank from D’s land encroached into P’s land for more than 20 years.  P sought an order to remove the septic tank.  D argued that P had acquiesced to the encroachment all this while, and is therefore estopped from making his claim.
  •  Court:  Acquiescence on the P’s part is not sufficient to create an easement.  There must be an expressed grant of easement in accordance with the NLC.
  •  P bought a piece of land.  There was a path used by D to access their land.  P put up fence, D took the fence down.  There was no registration of easement for right of way in favour of D.  Court:The right claimed by D had not been registered.Therefore, there was no easement created.
  •  Be created by expressed grant, and  Must be registered in accordance with NLC.
  • What is the position of an unregistered easement?
  •  There was no statutory provision dealing with easement.  Courts followed English principles.  Yong Joo Lin v Fong Poi Fong (1941) MLJ Rep 54.  Court adopted English rules as to acquisition of easement by prescription.  But this is not good law anymore…
  •  Datin Siti Hajar v Murugasu  The court laid down the principle:  “It makes it incumbent for the granting of easement by expressed grant and as provided by section 286, such grant can only be made with the agreement of the proprietor of the servient tenement and effected by way of executing an instrument in Form 17A”.
  •  In AlfredTempleton v LowYat [1989]  The court invoked Section 206(3) as the statutory authority for the liberal application of equity by the courts whenever there is a basis for it.
  •  V sold the land to P.  It was agreed thatV shall retain the right of way.  P, however, fenced the land andV’s land becomes landlocked.  V claimed that he was entitled to equitable easement.  Court held in favour ofV.  P knew that the land would not have been sold unless the right to way was maintained.
  •  Section 286:  The grant of easement shall be affected by an instrument in Form 17A.  In the case of cross-easements of support, by an instrument in Form 17B.  The easement shall come into effect on the date of registration.
  •  If the servient owner refuses to grant easement, an application can be made for LAROW under section 388.
  •  Kemala needs to have a new access to her land as the old access was badly damaged by a landslide. She now needs to travel 10 km per day to reach her office instead of the old route which is just 500 meters away from her house. Kemala approaches her neighbour Kumar, but Kumar refuses to allow access through his land unless Kemala agrees to pay him a certain amount of money based on the current value of the land.  Kemala decides to apply for a Land Administrator’s right of way but she was told by her son, Adil, a law student, that the Land Administrator is normally reluctant to entertain such application if there is any alternative route to the land. Kemala is unsure whether it is best for her to pay a small amount of money to Kumar and be assured of the access or put her application to the land office and pray for the best. In the mean time, she certainly has no other choice but to travel a bit far to go to her office.  With references to the National Land Code 1965 and decided cases, advise Kemala
  •  Identify ‘easement’ and ‘land administrator’s right of way’ (LAROW) as methods in which a registered proprietor may gain a right of access to a public terminal under the NLC.  Briefly explain the two concepts.
  •  Distinguish between the two concepts:  (ss. 282 and 388). 1. An easement is a type of dealing that must be registered (acquired right) while a LAROW is an imposed right created by the Land Administrator. 2. An easement covers also other types of rights including right of support and right of drainage. A LAROW is only confined to rights of way. 3. An easement cannot be created by prescription (Datin Siti Hajar’s case) but a public right of way may be created by prescription. (LyeThean Soo v Syarikat Warsaw)
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