An easement is a right over another's land, such as a right of way. It must be created by express grant between proprietors and registered. An unregistered easement gives no rights. Alternatively, if the neighbor refuses a registered easement, one can apply to the Land Administrator for a right of way (LAROW), though the Administrator is reluctant if other access exists. The document discusses these concepts and differences between an easement and LAROW under the National Land Code.

1. Areej Torla
areej@iium.edu.my
DEALINGS –PART 3:
EASEMENTS

2. Introduction on
easement

3. What is an easement?
 An easement is a right either to do
something, or to use something, over another
persons land.

4. 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;

5. 



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.

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

7. Easement under the
National Land Code

8. 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.

9.  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.

10. Who can create an easement?
 Only the registered proprietor may create an
easement, not the chargee or lessee.
 Lee Chuan Tum

11. 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 includeany right to take anything from the servient land;
or
any right to the exclusive possession of any part
thereof.

12.  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.

13. How is an easement created?
 The only way to create an
easement under the NLC is by way
of an expressed grant.

14. 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”.

15.  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).

16.  Can an easement be created by
acquiescence of the servient
owner?
 Acquiescence is not sufficient.

17. 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.

18.  An easement must be
regisered

19. 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.

20. Therefore, and easement must…
 Be created by expressed grant, and
 Must be registered in accordance
with NLC.

21. The unregistered easement
 What is the position of an
unregistered easement?

22. 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…

23. 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”.

24. 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.

25.  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.

26. 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.

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

28. 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


29.  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)