Download - LAND LAW 1 Dealings part 3 easements
![Page 2: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/2.jpg)
Introduction on easement
![Page 3: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/3.jpg)
What is an easement?
An easement is a right either to do something, or to use something, over another persons land.
![Page 4: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/4.jpg)
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;
![Page 5: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/5.jpg)
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.
![Page 6: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/6.jpg)
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.
![Page 7: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/7.jpg)
Easement under the National Land Code
![Page 8: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/8.jpg)
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.
![Page 9: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/9.jpg)
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.
![Page 10: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/10.jpg)
Who can create an easement? Lee Chuan Tum Only the registered proprietor may
create an easement, not the chargee or lessee.
![Page 11: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/11.jpg)
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.
![Page 12: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/12.jpg)
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.
![Page 13: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/13.jpg)
How is an easement created?
The only way to create an easement under the NLC is
by way of an expressed grant.
![Page 14: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/14.jpg)
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”.
![Page 15: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/15.jpg)
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).
![Page 16: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/16.jpg)
Can an easement be created by acquiescence of the servient owner?
Acquiescence is not sufficient.
![Page 17: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/17.jpg)
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.
![Page 18: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/18.jpg)
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.
![Page 19: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/19.jpg)
An easement must be regisered
![Page 20: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/20.jpg)
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.
![Page 21: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/21.jpg)
Therefore, an easement must…
Be created by expressed grant, and
Must be registered in accordance with NLC.
![Page 22: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/22.jpg)
The unregistered easementWhat is the position of an unregistered easement?
![Page 23: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/23.jpg)
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…
![Page 24: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/24.jpg)
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”.
![Page 25: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/25.jpg)
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.
![Page 26: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/26.jpg)
Alfred Templeton v Low Yat [1989] 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.
![Page 27: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/27.jpg)
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.
![Page 28: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/28.jpg)
If easement is refused?
If the servient owner refuses to grant easement, an application can be made for LAROW under section 388.
![Page 29: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/29.jpg)
Example of a question:QUESTION 1 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
![Page 30: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/30.jpg)
QUESTION 2
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.
![Page 31: LAND LAW 1 Dealings part 3 easements](https://reader036.vdocuments.us/reader036/viewer/2022081718/53f96a618d7f7253318b4d8a/html5/thumbnails/31.jpg)
Draft answer for Q2 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. (Lye Thean Soo v Syarikat Warsaw)