INTRODUCTION.

The National Land Code 1965 (NLC) has named 4 types of dealings
that require registration for the purpose of securing a priority in claims,
which include as easement. Though easement is actually a covenant
between two different land owners allowing the dominant land owner to
utilize a certain interest over the servient land, the LC requires the
agreement to be formalized and endorsed in the land office. This step is
important in order to ensure full acknowledgement of the present easement
thus binding any subsequent parties dealing with the servient land.

WHAT IS AN EASEMENT?
An easement is a right or privilege given to a registered proprietor of a
piece of land (dominant tenement) to utilize another piece of land (servient
tenement). An easement which gives a right use a piece of land of another in
a particular way is called positive easement while an easement which is in a
form of right exercised by owner of a piece of land to prevent another from
using his land in a particular way is called negative easement. An example of
positive easement is a right way and in the case of negative easement is a
right to light which it in some ways, prevents the neighbour from building on
his land anything that will obstruct the flow of natural light to the windows of
a house or other buildings. An easement is a right in rem, which binds the
land in which the right is created and is exercisable in the hands of
successive owners of the land for the benefits of which it is granted.
In other words, in easement, the right to enjoy anothers land arises
based on the agreement between two or more parties or sometimes referred
as a personal covenant between the parties. It may cease if the parties agree
to make an end to the agreement or in any of the parties breaches the terms

agreed or the subject matter of the agreement is no more available. The

National Land Code 1965 has classified easement as part of the dealings
thus it has to be governed according the provisions of the National Land
Code in order to enable the parties to enjoy the benefit specified under it.1
Judith Sihombing in National Land Code, a Commentary2 differentiates
easement other rights over land, namely:
1)A profit-a-prendre: A profit gives a right to take some part of the soil or
natural produce from land whereas an easement gives no right to take
anything from the land merely to use land or require a particular mode
to use. There are no provisions in the NLC which allows for the creation
of profit. According to her, the restriction and removal of rock material,
forest produce and so on, limit the right of a proprietor to deal with
those by contract;
2)

Public right, for example a right of way. A public right of way is one
over land able to be used by anyone, regardless whether they own the
land or not. The general rule is that alienated land cannot be alienated
to the public, thus according to Judith, any proprietor who wishes to do
so would have to surrender the land to the State Authority for
subsequent creation of the right;3

3) A licence. It is generally a personal right to use the land at will by either

party. For example, this right will come to an end if the holder dies. It is
not dealing capable of registeration;
4)

A restrictive covenant. It is a promise contained in a document under

seal. Thus their right arise under the privity of contract. There is a
provision for restrictive covenants under NLC, however, in some cases

1 Section 205
2 (1992), 2nd Edition, Malayan Law Journal,p 647-648.
3 Section 295 and 387

a negative easement, the concept and practice of which is quite similar

to restrictive covenant.

EASEMENT UNDER THE NATIONAL LAND CODE.

An easement is a right given to the owner of a piece of (the Dominant
land) over land
owned by another (the servant land). This is governed by Section 282(1) of
the National Land
Code (NLC) The right can be use to servient land or to prevent the owner of
the servient land
using his land to inhibit the passage of light to the dominant land.

A positive easement gives the right to do something on the servien

Land4. The negative
easement prohibits the owner of the servient land from doing certain acts on
his property5. According to Section 283(2), the said rights do not include:

1)any right to take anything from the servient land or

2)

any right to the exclusive possession of any part thereof.

However, the placing and the maintaining in or upon the servient land, any
installation or other
4 Section 283(1)
5 Ibid.

works for the benefit of the dominant is pemitted. There are four essential
features for the
creation of an easement:

1. There must be a dominant and servient land. The owner of the

dominant land obtains an enhancement or increase in his right over his
land and the servient land owner suffers a correspondent decrease in
his right over his land. An easement is a right against the land of
another; it is obvious that there must be a servient tenement. The
requirement of a dominant tenement is less obvious. It means that the
benefitd of an easement must be annexed to a definite plot of land, so
thaht only the occupiers of that plot have the benefit of the right.

2. The easement must accommodate the dominant land. An easement

cannot exist independently or unattached to land. In addition there
must be sufficient relationship or nexus- between the dominant and
the servient land. The requirement that the right must accommodate
the dominant tenement has been illustrated in Hill v Tupper6, in which
a canal company granted to a riparian owner the exclusive right to put
pleasure boats in the canal. It was held that this right did not amount
to an easement and therefore the grantee of it could itself maintain an
action against another person who put pleasure boats in the canal. It
was further said that no doubt the right accommodated the plaintiffs
pocket but it did not accommodate his tenement.

3. The dominant and the servient land owners must be of different

persons. An owner of the adjoining pieces of land cannot create an

6 [1863] 2 H & C 121

easement over one piece for the benefit of the other land as it belongs
to the same owner.

4. The right granted must be capable of forming a subject matter of grant

for example the right must be sufficiently definite.

It is to be noted that all the essential features are devired from the
landmark case of Re
Ellenborough Park7. In order for an easement to be granted the requirements
as mentioned above
must first be complied with. The right capable of being created as an
easement must come within
the terms in Section283.The section provides a proviso which permits an
easement and
maintenance of pipes on the servient land can be granted even if this
involves the granting of
exclusive possession of the part on which the installation is to the dominant
land owner.

In other Torrens jurisdiction such as in the case of North Shore Gas Co.
Ltd v
Commissioner of Stamp Duties8, the grant to lay pipes etc. is treated as a
transfer of the space occupied by the installation not as an easement.
7 [1956] Ch. 131
8 (NSW) (1940) 63 CLR 52

Despite the expressed terms of the proviso, such a transfer it described in

Section 214(1)(a) of the Code.

EASEMENT AND NATURAL RIGHTS.

The right under the National Land Code 1965 can be divided into several
types include:
1)Imposed right;
2)

Acquired right; and

3)

Natural right.

In the case of an easement, it is categorized as an acquired right which

means that it must
be created via the grant of the right by the owner of the servient tenement.
A natural right is one that land owner has as a necessary incident of his
ownership of the land. Most natural rights which a man has, against his own
land for example, the right to walk about it. There is however a natural right
to support laterally by the neighbouring land. If his support is withdrawn and
in
consequence, his land subsides, he will be entitled to take action for
damages against his neigbour. An easement of support can be acquired
which will give the right to ones building supported by neighbouring lands or
neighbouring buildings.

This is provided under Section 285(3) whereby cross easement of

support are easements granted by the owner of the adjacent land for the
benefit of his eighbours.Thus each land owner is a servient land owner as
well as a dominant land owner. The most usual cross easement but relates
to party-walls whereby the owner of the each building has the right of

support from his neighbour for his building. The Land Administrators Right of
Way (LAROW), on the other hand is an example of imposed right. Once, the
Land Administrator decides to grant the LAROW, any land owner has abide
the decision and he may only appeal under Section 418 of
the National Land Code. In this case, if he fails in his appeal, he has no
choice but to agree and to
provide the rights and interest to all parties entitled to the benefit.

SCOPE OF EASEMENT9.

In Strollo v. Iannantuoni10, the trial court recognized an easement by

necessity but limited
the road to 20 feet in width. The owner of the dominant estte appealed,
arguing that, although 20 feet was adequate for the agricultural and
recreational purposes to which the land had originally been used, it was
inadequate if the owner wished to subdivide the land. The court of appeals
refused to grant the request to widen the easement to 50 feet, as would be
needed for a road adequate to a subdivision. The court held that it was no
reasonably essential to plaintiffs use of their property to impose an
easement of necessity that is fifty feet wide on the defendants property
simply to accommodate the plaintiffs desire to profit from a potential
subdivision. Moreover, the creation of such a right of way would work a
serious inequity on the defendants11.
One might argue that an easement by necessity should be recognized, not
just to provide access to land. Because it was foreseeable that an owner
9 Joseph William Singer. Introduction to Property . Second Edition . page:199.
10 Strollo v. Iannantuoni 1999
11 Town of Bedford v. Cerasuolo , 2004

might subdivide and develop the property, the owner of the landlocked
parcel should be entitled to an accessway that is appropriate to such
development.

Some states grant owners of landlocked parcels the power to obtain an

easement over neighboring land for access to public road by application to a
public official with compensation paid to the landowner whose property is
burdened by the easement. However, some courts have found such statutes
unconstitutional takings of property under the state constitution because
property may be taken by eminent domain only for a publis purpose and
transfer of property from one owner to another arguably does not constitute
such a public purpose when its only goal is to protect the interests of an
owner who could have avoided owning a landlocked parcel by bargaining
originally for such an easement from the grantor12. This is not the view of the
vast majority of courts, including the Supreme court , which hold that public
purposes are often served by transferring property from one private owner to
another13. It would seem transferring that preventing a scarce resource such
as land from being rendered unusable or inalienable would constitute a
legitimate public policy.

EASEMENTS IN SYARIAH PERSPECTIVE14.

Unlike order dealings such as charges and leases, easements come

under a category of its

12 Tolkdorf v. Griffith , 2001

13 HawaiI Housing Auhtority v. Midkiff , 1984
14 Hj. Salleh Hj. Buang. Malaysian Torrens System.page 314-315.

own. Under the code, easements can only be created by express grant and
must be registered. There is no such things as an equitable easement 15. Nor
can there be an easement by implied grant,
prescription, long user, custom, or acquiescence, as in the case under the
English law or real
property.
Irtifaq (easement) under Islamic law can come into being on the basis
of long user, their
existence being proven since time immemorial. Where, however, such rights
rest upon the
consent of the servient owner and they are of recent origin, the consent can
be revoked by the
servient owner at any times.

The Islamic law recognises the following right16 :

I.
II.
III.

Right of way over the servient land;

Right to the flow of water going across the servient land;
Right to discharge rain on the servient land.

Islamic law, in addition grants to the owner of a property protection form

injurious actions17 by his neighbour which disturbs the quiet enjoyment of his
property or which constitutes and invasion of privacy of his women-folk 18.
These rules are part of the doctrine of darar fahishun or excessive damage.
The following actions of a neighbour are examples of darar fahishun which
are prohibited in Islam.
15 E.W. Talalla v. Ng Yee Fong and Anor. [1985] 1 MLJ . 216.
16 Dr Liquat Ali Khan Niazi. Islamic Law Of Tort . page: 112.
17 The Mejelle, Articles 1199-1201
18 Ibid

a) Withdrawal, weakening or interference with the right of natural support

of the owners land or buildings;

b)

Emissions of strong excessive smell, smoke, dust or such other

impurities form the neighbouring property;

c) Dumping of waste matter, refuse or garbage on the common wall

dividing the property or at the neighbours wall and thereby causing it
to decay;

d) Preventing light, air, view or breeze to reach the adjoining property ,

however partial interference is not deemed excessive damages;

e) Invasion of privacy of women-folk, such as by constructing ones

building with windows which over look into the womens quarters or
work-place on the adjoining land; and

f) Locating ones sewage or cesspit so near the neighbours property that

it affects the condition or purity of the water in the neighbours well.
Rights in the nature of easement under Islamic law are geared to ensure
good neighbourliness and mutual interdependence and well-being, which
is the hallmark of the Islamic way of life. We have on the authority of Abu
Shuraih who reported the Prophet to have said:

By God, he is not a believer, by God, he is not believer, by God, he is

not believer. The Companions asked Messenger of Allah, who is that?.

The Prophet said He whose neighbour is not safe from his highhanded-ness19.

These rights have been laid down in Al-Majelle as well.

As man may have no right in property but may have rights connected
with it, such as a right of way a right to the flow of water , and a right to
discharge rain water over anothers land. These rights correspond to
easement in English law. An easement is to be enjoyed as in the past and
cannot be altered or enlarged. It is lost by disuse.20
The law permits right of way over anothers land or right to discharge
rain water and according to the compilers of Al-Majelle, also right to a
certain amount of privacy for females. The right to privacy, it may be
mentioned, appears not to have been favoured by ancient jurist. No time
seem to be fixed for the acquisition of right e the rain tof easement, the user
must be ancient. For instance, a person building a new house near anothers
land cannot discharge the rain water of his premises over land.21

19 Sahih Bukhari, vol 3,p 28.

20 Sir Abdul Rahim, Muhammadan Jurisprudence, p. 272
21 Ibid, pp. 281-282.

EASEMENT IN THE MEJELLE:

SECTION IV. RIGHT OF WAY, RIGHT OF AQUEDUCT, RIGHT OF FLOW.

1. Must be of time immemorial.

1224. In case of right of way, right of aqueduct and right of flow, ancient
rights shall be observed. That is to say, rights acquired in the remote past
are left as they were, because, as is laid down in Article 6, things which have
been in existence from time immemorial shall be left as they were and until
some proof to the contrary is produced, they shall not be changed. But
anything existing from time immemorial which is contrary to law is invalid.
That is to say, if any act which has been performed was originally illegal and
has existed from time immemorial, such act is invalid, and, if it causes great
injury, shall be removed (See Article 27).
Example:- If the dirty water of a house has flowed from time immemorial into
the public highway, and causes injury to the passer by, the ancient rights are
disregarded, and the injury must be removed.

2. Right of way over a building site.

1225. If any person has a right of way over the land of another the owner of
the land cannot prevent him from passing and crossing over the land.

3. A license is revocable.
1226. A person who has given something for nothing, to be consumed, has a
right to revoke the gift. If injury is inflicted by consent, such consent may be
withdrawn. Consequently, If a person who has no right of way over the land
belonging to another exercises a right of way there over for a certain period,
with the permission of the owner of such land only, the latter may, whenever
he wishes, prevent him from exercising the right.

4. Right of way lost by leave to build on it.

1227. If any person has right of way over a defined pathway on the land of
some other person, and the owner of the land erects a building on such
pathway with the permission of the owner of the right of way, the latter loses
his right of way, and has no right of disputing the matter with the owner of
the land. (See Article 51).

5. Right of owner of ancient water course.

1228. If a cutting or a water channel belonging to one person runs by right
across the land of another, the owner of the land may not endeavour to
prevent the former from exercising his right in the future. If such cutting and
water channel are in need of improvement and repair, the owner thereof
shall be allowed access thereto, if this is possible, and may make such
improvements and repairs, however, without entering upon the land, and the
owner of the land will not give the necessary permission, the Court shall
oblige him either to grant permission for entry on the land, or to carry out
the repairs.

6. Right of drip on adjoining house.

1229. If the rain water of a house has flowed on to the house of a neighbour
from time immemorial, the latter may not thereafter seek to prevent such
flow.

7. Right to have rain water run away.

1230. When the drip from a house, situated on a road, from time immemorial
has fallen on the road, has flowed into a building site situated below that
place, the owner of the building site cannot block the ancient course of the
water upon his building site.
8. Drip from a new house.
1231. No person may cause the water from a newly constructed room to flow
into the house of
some other person.

9. Right to sewer.
1232. The owner of a house which is burdened by a right of sewage may not
stop the right of flow, nor any person who purchases such house.

10.

Duties of owner of sewer.

1233. If a sewer, which flows by right through a house, causes excessive

damage to the owner of the house when it is full, or if it is broken, the owner
of the sewer is compelled to prevent this damage22.

22 The Mejelle, Translated by C.R. Tyser .pp 200-201

CONCLUSION.

Provisions on easement under the National Land Code 1965 provides

clear law and procedures to those who wish to deal with it. The judgement in
Alfred Templetons case is a example of an abrupt judgement and an act of
ignoring the statutory provisions of the law. Although equity is a method to
achieve justice, where there are clear statutory provisions, equity should
follow the law. Islamic law, in addition grants to the owner of a property
protection form injurious actions by his neighbour which disturbs the quiet
enjoyment of his property or which constitutes and invasion of privacy of his
women-folk. These rules are part of the doctrine of darar fahishun or
excessive damage.