relevant cases for easement LAW554 - Land Law II Faculty of Law UiTM, Malaysia

1. List of Cases for Easement
LAW 554 – Land Law II
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2. 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.
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3. 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.
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4. 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)
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5. 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
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6. 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.
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7. 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)
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8. 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.
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9. 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)
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10. 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.
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11. 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.
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12. 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.)
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