EASEMENT & RIGHT OF WAY

BY : RUZILAWATI BT MOKHSEN

EASEMENTS (SEC282-291)

DEFINITION
Easement means any right granted by one proprietor to another, in his capacity as such and for the beneficial enjoyment of his land.

Dominant land: the land for the benefit of which any easement is granted is referred to as the dominant land. Servient land: the land of the proprietor by whom the benefit is granted referred to as the servient land.

Right Capable of Being Granted

The rights capable of being granted as easements are:

any right to do something in, over or upon the servient land; and any right that something should not be so done.

The said right do not include- any right to take anything from the servient land; or - any right to the exclusive possession of any part thereof.

Necessity express grant.

No right in the nature of an easement shall be capable of being acquired by prescription that is by any presumption of a grant from long and uninterrupted user. No right shall be capable of being acquired by implied grant except as mentioned in section 286.

Restriction on the power to grant.

Subject to limitation by law The power of the proprietor to grant easements shall be subject to any prohibition or limitation imposed under NLC or any other written law for the time being in force and to any restriction in interest to which his land is for the time being subject.

Require Consent. No easement affecting the enjoyment of land which is subject to any lease, tenancy or charge shall be capable of being granted without the consent of the person or body for the time being entitled to the benefit thereof; and any such consent shall be signified in the instrument by which the easement is granted, as indicated in the Forms 17A or 17B.

Forms and effect of grant

Forms. The grant of any easement shall be effected by: Form 17A for easement Form 17B for cross easement of support

Effective date The easement shall come into existence on the date on which the instrument is registered.

Period of grant the grant can be for term of years or in perpetuity depending on the interest of the grantor.

Formssuch granteffect of grant and Implied in any

The grant includes all such ancillary rights as may be reasonably necessary for the full and effective enjoyment thereof.

Payment of cost. The grant may contain an agreement between the proprietor of the dominant land and servient land binding either or both to pay for or contribute towards the cost of constructing, maintaining or repairing any way, wall, drain or other installation or work forming the subject matter of the easement.

Binding during proprietorship only. The agreement shall be binding on the proprietor only for the period during which his proprietorship continues to subsist, and any subsequent period shall be binding on his successor in title.

Enjoyment of easement
The benefit of any easement granted shall be enjoyed by the proprietor of dominant land and his successor in title and:

Any lessee or tenant thereof so far as the nature of the easement permits Any chargee for the time being in occupation thereof so far as the nature of the easement permits

Easement of way
Types of easement of way:

Right of footway without animal or vehicle Right of carriageway with or without animal or vehicles

Release, extinguishment and cancellation.

Release Any easement granted may be released at any time by the proprietor of dominant land Any release shall be effected by Form 17C The consent of lessee, tenant or chargee entitled to the benefit of easement shall be necessary.

Extinguishment of easement by unity of title and possession

Any easement granted shall be extinguished at any time after all the following conditions satisfied:
The dominant land and servient land are vested in the same proprietor No lessee, tenant or chargee is entitled to the benefit thereof The servient land or part thereof the enjoyment of which is affected by the easement is neither subject to any lease or tenancy nor occupied by any chargee

Cancellation of easement by Registrar

That it has been extinguished The term expired or the event on the occurrence of which was expressed to determine has taken place That it has been abandoned That it is obsolete or impedes the reasonable use of the servient land, and that its cancellation will not injure any person entitled to the benefit thereof

LAND ADMINISTRATOR RIGHT OF WAY (387-395)

DEFINITION
Public terminal the foreshore, or river, railway station or public road
Land Administrators right of way. The right conferred and obligation imposed shall run with the land and shall be binding on the lands proprietors and occupiers for the time being

Characteristics of Land Administrators right of way

Private right of way a right created for the benefit of the State Authority or the proprietor or occupier of any alienated country land. Private right of way created for the benefit of State Authority shall authorized persons acting with express or implied consent of the State Authority To pass and re-pass between reserved land or a forest reserve and a public terminal; or For the purpose of removing rock material from any land, to pass and re-pass between the land and a public terminal. Private right of way created for the proprietor or occupier of alienated land shall authorize the proprietor or occupier as the case may be and persons acting with the express or implied consent of the proprietor or occupier to pass and re-pass between the land and a public terminal.

Public right of way a right of way created for the benefit of the public.

A public right of way shall authorize the public to pass and re-pass between any specified area of land and public terminal.

Creation of right

The State Authority or proprietor or occupier of any alienated land country land may apply to the Land Administrator in Form 28A for the creation of private right of way. The LA shall hold enquiry. If he is satisfied that it is expedient for a private right of way or public right of way to be created, shall make an order creating the right of way

An order shall: Describe sufficiently;

The land and the public terminal between which the right of way is to run; and The route of the right of way; State whether or not those using the right of way may pass and re-pass with animals and vehicles; and Contain such conditions and limitation (if any) as the LA thinks fit

Procedure on creation of right Land Administrator shall:

Cause the route of the right of way to be surveyed. Cause to be delivered to him the issue document of title of any land affected by the right of way. On delivery to him of the issue document of title the LA shall:

In the case of Land Office title; Make memorial of the right of way in Form 28B on both the RDT and IDT Cause the route of the right of way to be shown on the IDT, either by means of a fresh plan or by means of an amendment of any plan already endorsed thereon.

In the case of Registry title: LA presents the IDT to the Registrar, together with an order creating the right of way. The Registrar shall:

Make on both RDT and IDT a memorial of the right of way, showing its route either by means of a fresh plan or by means of an amendment of any plan already endorsed thereon; and Returned the IDT to the person entitled thereto.

Cost of survey
The cost of surveying, constructing, maintaining or repairing LA right of way shall be borne

Private right of way by authority or person for whose benefit it has been created; Public right of way by the State Authority.

Compensation Payable to any person for the use of his land as LAs right of way for any damage to trees, crop or building

Sharing the right of way by adjacent proprietor; The proprietor of adjacent land may apply to LA to share the ROW.

discussion
form 17A, 28B town land, country land easement country land-ROW survey-ROW perintah-ROW consent-easement cost-share(easement) cost-who benefit pay (ROW) pemberian tuan tanah-easement-express grant perintah PTD-ROW