DEALINGS –PART 3:EASEMENTS

Areej Torla areej@iium.edu.my

Introduction on easement

What is an easement?

An easement is a right either to do something, or to use something, over another persons land.

Types of easements

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.

Characteristics of an easement

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 differentpersons; and(d) the easement must be capable of forming the subject matter of a grant.

Easement under the National Land Code

What is an easement?

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.

Salleh Abbas FJ stressed that for a claim of easement to be established, every easement must possess these four characteristics.

Who can create an easement?

Only the registered proprietor may create an easement, not the chargee or lessee.

Lee Chuan Tum

What can be granted as easement? 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.

How is an easement created?

The only way to create an easement under the NLC is by way

of an expressed grant.

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”.

Can an easement be created by prescription?

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).

Can an easement be created by acquiescence of the servient

owner?

Acquiescence is not sufficient.

EW Talalla v Ng Yee Fong

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.

An easement must be regisered

Tan Wee Choon v Ong Peck Seng [1986] 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.

Therefore, and easement must…

Be created by expressed grant, and Must be registered in accordance

with NLC.

The unregistered easement

What is the position of an unregistered easement?

Before NLC

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…

After NLC

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”.

However…

In Alfred Templeton v Low Yat [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 that V shall retain the right of way. P, however, fenced the land and V’s land

becomes landlocked. V claimed that he was entitled to equitable

easement. Court held in favour of V. P knew that the land would not have been sold

unless the right to way was maintained.

Application for an easement

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 easement is refused?

If the servient owner refuses to grant easement, an application can be made for LAROW under section 388.

Example of a question

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 (ss. 282 and 388). Distinguish between the two concepts:

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. (Lye Thean Soo v Sykt Warsaw)