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Omitted Easements (2018) 26 APLJ 333.pdf (722.91 kB)

Omitted easements in the Torrens system: devising a better strategy

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journal contribution
posted on 2023-05-19, 17:20 authored by Lynden Griggs
The law on omitted easements as an exception to indefeasibility is in a mess. With jurisdictional differences all too evident, and the parties often overwhelmed by the cost of litigation, law and community expectation are unaligned. This article seeks to connect the practice with the law and to argue in favour of a wide and expansive view as to when the exception applies. The approach suggested consists of a wide exception for omitted easements to indefeasibility together with a ‘conclusive evidence’ provision in the legislation that the recording of the easement on the dominant tenement establishes the existence of that easement. This approach is supported by history, authority, and by reference to the underlying integrity of the land administration system.

History

Publication title

Australian Property Law Journal

Volume

26

Pagination

333-352

ISSN

1038-5959

Department/School

Faculty of Law

Publisher

LexisNexis Butterworths

Place of publication

Australia

Rights statement

Copyright 2018 LexisNexis Butterworths

Repository Status

  • Restricted

Socio-economic Objectives

Justice and the law not elsewhere classified

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