Main Page => Notes & Assignment
what is easement?
An easement is a right either to do something, or to use something, over another persons land.
what is the characteristic of easement?
Re Ellenborough Park [1956] laid out certain ground rules for establishing a new easement:
(a) there must be a dominant and a servient tenement;
(b)the easement must accommodate the dominant tenement;
(c)the dominant and servient tenements must be owned by different persons
(d)the easement must be capable of forming the subject matter of a grant
what is 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 followedby Tam Kam Cheong v Stephen Leong [1980] 1 MLJ36.
- Salleh Abbas FJ stressed that for a claim of easement to be established, every easement must possess these four characteristics
who can create easement?
- Lee ChuanTum
- Only the registered proprietor may create an easement, not the chargee or lessee.
what can be granted as easement?
- Section 283
- any right to do something in, over or upon the servient land; and
- any right that something should not be so done. Does not include
- any right to take anything from the servient land; or
- any right to the exclusive possession of any part there of
- Provided that nothing 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 VS 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 easement created by presciption?
- Section284(1)
- No right in the nature of an easement shall be capable of being acquired by prescription
- *Prescription is the establishment of a claim founded on the basis of a long or indefinite period of uninterrupted use or of long-standing custom
can easement created by acquiescence of the servient owner?
- Acquiescence is notsufficient
E W 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 aneasement.
- There must be an expressed grant of easement in accordance with the NLC
Tan Wee Choon V Ong Peck Seng
- 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, an easement must ...
- Be created by expressed grant,and
- Mustbe registered in accordance with NLC
Before NLC ...
- There was no statutory provision dealing with easement.
- Courts followed English principles.
- Yong Joo Lin v Fong Poi Fong (1941) MLJRep 54.
- Court adopted English rules as to acquisition of easement by prescription.
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 andas 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 instrumentin 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.
Alfred Templeton V Low Yat[1989]
- Vendorsold the land to Purchaser.
- It was agreed that V shall retain the rightof way.
- P, however, fenced the land and V’sland becomeslandlocked.
- V claimed that he was entitled toequitable 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 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 Land Administrator’s Right of Way (LAROW) under section 388
what is LAROW?
A right of way
- Created by the LandAdministrator
- Over alienated land
- To provide access between any land and a public terminal
- With or without concurrence from the proprietor.
- (it is a type of imposed right)
- (S 387: “public terminal” means the foreshore, river, railway station, publicroad)
