cases for easement

compiled by azrin.hafiz 1

List of Cases for Easement

LAW 554 – Land Law II

Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor

Facts: the Vendor in selling land had retained for the remaining land the benefit of a right of way.

Later, the purchaser commenced building work on the purchased land which hindered access to the vendor’s land which became landlocked as a result.

In seeking to maintain the right of way the vendor claimed, inter alia, specific performance of the contractual right of way or a declaration that it was entitled to an equitable easement in respect of such a right.


Cont…

The grounds for the easement in equity were that the D company:-(a) had agreed in sale and purchase agreement that the land was sold subject to the right of way;(b) knew that the vendor would not have sold unless the right had been agreed upon; and(c) later orally agreed to grant such a right.


Decision Court granted relief to P on the basis of equity.

The defendant company was ordered to execute and register an easement in statutory form.

“…when…the defendant company has by its words and conduct led P to believe that they would be provided a right of way from their lots, which otherwise would be landlocked, it should not be allowed to go back on them when it would be unjust or inequitable for it to do so.” (Edgar Joseph J at p 245)


Datin Siti Hajar v Murugasu Facts: P is the Registered

Proprietor of 2 pieces of land. One of the land has a road frontage with a public road which leads to town.

D is the owner of the adjacent land


CONT…

Since 1964, D and the occupiers of the houses have been using the road as access to and from public road (constructed a metalled road across P’s land as an approach road to link up with a public road).

P allege that since 1964 D has built the road on her land without her consent and had been wrongfully trespassing on the said land.


Decision

It was decided that the metalled road constructed by D was not easement even though P never objected to it. An easement could only be granted by an express grant as provided for under Section 284 NLC and that such grant could only be made with the agreement of the proprietor of the SL and affected by way of executing an instrument in Form 17A. (an injunction restraining D by himself or his servants or agent from entering or crossing P’s land and damages was granted to P) compiled by azrin.hafiz 7

EW Talalla v Ng Yee Fong & Anor

Facts: A part of the D’s premises,

a septic tank, had encroached upon by P’s land for more than 20 years. P’s sought an order for removal of the septic tank and D contended that as P had been aware of the encroachment for a long time, he must be taken to have acquiesced in the encroachment thereby creating an easement in favour of D’s land.


Decision

Court held: under the Code an easement must be created by express grant. Orders were made under which D had to cease the encroachment, the septic tank was to be removed and D were to refrain from again encroaching.“acquiescence on the part of P is not sufficient to create an easement. There must be an expressed grant of easement in accordance with the provision of the sections” (W Hamzah J)


Tan Wee Choon v Ong Peck Seng & Anor

Facts: P had bought a piece of land over which there was a path used by D as access to their land.

P fenced the land but the fence was removed by D.

P then sought a declaration that he was entitled to the exclusive possession of the land, and an injunction restraining D from trespassing on the land.


Decision

P succeeded. Court held that whatever the right claimed by D might be, it had not been registered as an easement and further it was unclear as to how it had been obtained.


CONT…

“ it is true that prior to 1965 rights of way could be acquired through easement, prescription, lost modern grant or by way of necessity but these common law and equitable rights previously procurable in this country are no longer available since the passing of section 3(1) and 6 of the Civil Law Act 1956 and the …Code” (Wan Yahya J at p 323.)


cases for easement

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