Omitted Easements (2018) 26 APLJ 333.pdf (722.91 kB)
Omitted easements in the Torrens system: devising a better strategy
journal contribution
posted on 2023-05-19, 17:20 authored by Lynden GriggsThe 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 JournalVolume
26Pagination
333-352ISSN
1038-5959Department/School
Faculty of LawPublisher
LexisNexis ButterworthsPlace of publication
AustraliaRights statement
Copyright 2018 LexisNexis ButterworthsRepository Status
- Restricted