Trespass to Land

Introduction
Trespass to land means that a person has interfered other persons’ right to possession
of land without justification. In the case of Lim Yoke Foo v Pun Tat Meng, the court held
that trespass to land will only occur to the person who has right to possess the land, namely a
landowner, tenants. Hence, a mere licensee cannot bring action for trespass to land because
he did not enjoy possession of the land since he did not enjoy any interest upon the land. In
addition, one can bring suit under trespass to land even though there he could not show that
there is actual damage occurred to the land as stated in Hashim bin Din v Sato Kogyo co
Ltd and it is also affirmed in Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor. A
person can bring action under trespass to land because Article 13(1) of Federal Constitution
stated that a person is entitled for right to property save in accordance with law. The
definition for land can be found in Section 5 of National Land Code 1965 (NLC) as the
surface of the earth and all substances forming that surface or the earth below the surface, and
all substances there in or all vegetation and other natural products whether or not requiring
the periodical application of labor to their protection, and whether on or below the surface or
all things attached to the earth permanently fastened to anything attached to the earth,
whether on or below the surface, or land covered by water. The rationale behind action
against trespass to land is to give enjoyment of land to the person who possessed it without
being interfered and such position is also affirmed under S.44(1)(a) of NLC. There are two
elements which need to be established to constitute trespass to land, such elements are mental
state of the defendant and interference.
Elements of Trespass to Land
Issues: Whether the act amounts to trespass to land?
A. Mental State of the Defendant
 The defendant must have intention to commit his wrongful act of trespassing,
however, in the case when defendant claimed that he did not intend to trespass, his
intention can be seen from his voluntary act such as voluntarily entering to land
belonging to others. In fact, the plaintiff does not need to prove that the defendant has
knowledge that he was trespassing to land.
Cases:
 MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd (No. 2)
Held: The court held that the defendant cannot claim that he did not know his act of
entering into another’s piece of land amounts to trespass or he did not know that he
was not given any right to enter the land.
 Basely v Clarkson
Facts: When the defendant was mowing his own grass, he also mowed the plaintiff’s
grass accidentally.
Held: The court held that the defendant is liable for trespass to land because his act of
mowing the grass fulfilled the element of intention since such act is done voluntary,
even though such act is a mistaken action. This is because mistaken action can still be
done with intention, hence such mistaken action may still be deemed as voluntary act.
 Conway v George Wimpey & Co Ltd
Held: The court held that a person is liable for trespass to land when there is a
deliberate entry to the land done by him. Hence, a person can still be found liable for
trespass to land, even though he believed that he was given authority to enter the land,
or he honestly and reasonably believe that he had possession of the land, or he did not
know that he entered the land belonged to plaintiff.
 Note: Element of intention will not be established if the defendant’s entry was
done involuntarily, namely such act was done without defendant’s consent.
 Smith v Stone
Held: The court held that the defendant is not liable for trespass since his entry into
plaintiff’s land was being forced by another person and such entry was done without
his consent. Trespass to land would be imposed on the person who brought defendant
to the plaintiff’s land.
 Different judgement from Smith’s case can be seen in:
 Gilbert v Stone
Held: The court held that the defendant was liable for trespass to land even though he
was under duress to enter the land, since his act of entering is intentional.
 Hence, by judging both cases, when the defendant claimed that his entry to land was
under duress, the court will look at the element of choice to determine such issue.
Thus, if the defendant was in a situation which he did not have any alternatives but
resort to commit wrongful act of trespass, such act will be deemed as unintentional.
The intention will be imposed upon the person who forced the defendant.
 Note: Element of intention can be established if the defendant ought to foresee
that his action or omission will amount to trespass.
 League Against Cruel Sports Ltd v Scott
Facts: The plaintiff owned a deer sanctuary, and people are banned from hunting on
the land. The plaintiff alleged that the defendants trespassed onto the land when
defendants’ hunting dog crossed the plaintiff’s land during hunting nearby the land.
Held: The court held that the defendant was liable for trespass because the element of
intention can be inferred when the defendant should have foreseen that his failure to
look after the dogs which result the dogs to cross onto plaintiff’s land, such omission
will amount to trespass.
 In short, trespass can be proved when there is intention to commit the act of trespass,
or when the entry is a voluntary act, or the defendant ought to foresee that his action
or omission will affect plaintiff’s possession of land.
B. Interference
The interference under trespass to land must be an action which occurred directly, it
means that the trespass happened due to the direct act from defendant.
(i) Entering land which is in the plaintiff’s possession
 Kerajaan Negeri Selangor v Sagong bin Tasi
Held: The court held that the defendant’s act of demolishing plaintiff’s house
deliberately amounts to trespass.
 Janaki & Anor v Cheok Chuan Seng & Ors
 Held: The court held that the defendant was liable for trespass because defendant’s act
of entering plaintiff’s land indicates that they ignore plaintiff’s right to property and
interfere plaintiff’s right of possession to the land.
 Haji Jaafar Haji Hashim v Rohani Bte Abdul Latip
Held: The court held that Committee of the Poor Housing is liable for trespass to land
because they had enter the plaintiff’s land deliberately and their wrongful act of
trespass can also be seen from the fact that they demolished and reconstructed
plaintiff’s house.
 Note: If the land is accessible to public, the right to enter the land must not be
used for a wrongful purpose.
 Hickman v Maisey
Facts: The defendant always spy on plaintiff’s horses when the plaintiff was training
his horses, he conducted such activity by using the road across plaintiff’s land.
Held: The court held that the defendant is liable for trespass to land because the road
across plaintiff’s land was used by defendant for wrongful purpose which is to spy on
the plaintiff’s horses, the right purpose of the road should be used for crossing
purposes.
 Harrison v Duke of Rutland
Facts: The plaintiff was being hold down by defendant’s servants after the plaintiff
used a public highway to enter the defendant’s land. The plaintiff alleged that the
reason he enters defendant’s land was because he disapproved of defendant’s shooting
bird activities.
Held: The court held that the plaintiff was a trespasser because the plaintiff had used
the public highway wrongfully since he used it to cross onto defendant’s land and
disrupt defendant’s right to shoot bird on his own land.
 Government of Malaysia & Anor v Kong Ee Kim
Facts: The plaintiff used the public highway to distribute pasture which consists of
white ants to her chickens.
Held: The court held that the plaintiff is liable for trespass since she misuses the
highway for incorrect purpose which is to feed her chickens.
 Note: There is no requirement to prove that actual damage had occurred,
because trespass is actionable per se.
 Tan Wee Choon v Ong Peck Seng & Anor
Facts: The defendant always used some area of plaintiff’s land to cross to his own
house, later, the plaintiff fence such area of the land, but the defendant destroyed such
fence. The defendant alleged that the plaintiff cannot sue him for trespass to land,
because there must be proof that there is damage occurred.
Held: The court held that the plaintiff did not need to prove that damage had occurred
to establish trespass, because trespass is actionable per se.
(ii) Remaining on the plaintiff’s land
Remaining on land can amount to trespass, such as the defendant failed to remove
things and such things still remains on plaintiff’s land, or defendant as a person still
remains on the plaintiff’s land. This situation can also be known as “continuing
trespass”.
- Person remains on the plaintiff’s land
 Lee Sem Yoong v Leong Yoong
Held: The court held that a licensee is liable for trespass to land if he still occupied the
land when his license had been revoked.
 Nadchatiram Realities Ltd v Raman & Ors
Held: The court held that the tenant will be liable for trespass to land if he still
occupied the premises when the landlord had served notice of taking back the
possession of premises from tenant.
- Failure to remove things on plaintiff’s land
 Holmes v Wilson
Facts: To support a road, a buttress had been built by defendant, and such buttresses
was built on plaintiff’s land.
Held: The court held that the defendant was liable of trespass because he failed to
remove the buttress from plaintiff’s land, even though the defendant did compensate
the plaintiff.
 Konskier v Goodnman Ltd
Facts: The defendants promised to clean the debris after they finished their repairing,
but the defendants failed to do so. The failure of cleaning debris later affected plaintiff
because it destroyed plaintiff’s goods.
Held; The court held that the defendants are liable for continuing trespass because
they fail to remove the debris.
 Tay Tuan Kiat v Pritam Singh
Held: The court held that the defendant is liable for continuing trespass because his
failure to remove the wall which intruded plaintiff’s land.
 Note: In case of continuing trespass, there is fresh cause of action each day as
long as the things are not removed.
 Cheah Kim Tong v Taro Kaur
Facts: The plaintiff argued that his land was being encroached by defendant’s house.
Held: The court held that this situation amounts to continuing trespass hence there is
new cause of action arose each day.
 Note: If a person uses another person’s land as a path to access to someplace, it
will amount to continuing trespass.
 MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd (No. 2)
Held: The court affirmed that if a person uses another person’s land as a path to
access to elsewhere, it will amount to continuing trespass.
 Ooi York Choo v Lim Song Foundry
Facts: The plaintiff argued that the defendant used plaintiff’s land as a path to reach
the accretion land.
Held: The court held that the defendant’s act amount to continuing trespass, since
such act was also committed without plaintiff’s permission.
 Note: Continuing trespass did not extend to the situation when the land cannot
be restored to original situation, it is only applicable to failure to remove things
or defendant still remains at plaintiff’s land as affirmed in Clegg v Dearden.
(iii) Entering or placing an object on the plaintiff’s land
 Westripp v Baldock
Held: The court held if a person places a ladder on another person’s wall, such act
will amount to trespass.
 Simpson v Weber
Held: The court held that if a person inserts a nail into another person’s wall, such act
will amount to trespass.
 Pickering v Rudd
Held: The court held that the act of defendant which shoot a gun to plaintiff’s
property amounts to trespass.
 Lavender v Betts
Held: The court held that the act of defendant which abolish the plaintiff’s door and
windows amount to trespass.
 R v Khan
Held: The court held that if a person had inserted a device on another person’s house
for surveillance purpose, such act would amount to trespass.
 Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor
Held: The court held that the defendant is liable for trespass because he had
discharged soil upon plaintiff’s land.
 Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd
Held: The court held that a person would still be liable for trespass even though he
had placed ground anchor on an unoccupied land.
 Ladang Tai Tak (KT) Sdn Bhd v Suppiah a/l Andy Thavar & Ors
Held: The court held that the defendant’s act of establishing a temple on plaintiff’s
land constitutes trespass.
 MTB Rubber Sdn Bhd v Wangi KMB Berhad
Held: The court held that when soil had come across another’s land because of
earthwork, and such soil was still not removed and remained on the land, this will
amount to trespass.
 Note: A person’s liability to trespass will not be reduced just because they had
been granted consent from local authorities to build things such as new
structures or new extensions on another person’s land.
 K Mahunaran v Osmond Chiang Siang Kuan
Held: The court held that the defendant is liable for trespass even though his building
of new party wall is consented by local authority, but such construction was not
consented by plaintiff and it affected plaintiff’s right of possession of land since the
wall had encroached onto plaintiff’s car porch.
(iv) Interference to Airspace
 Interference also extended to space above the land, hence interference to airspace is
one of the examples for interference.
 Kelsen v Imperial Tobacco Co Ltd
Held: The court held that the defendant is liable for trespass because the defendant
had interfered plaintiff’s airspace when his signboard had reached into eight inches of
plaintiff’s airspace, hence, the court issued mandatory injunction and compel
defendant to remove the signboard.
 Wandsworth Board of Works v United Telephone Co
Held: The court held that defendant is liable for trespass because the defendant had
interfered plaintiff’s airspace when the unauthorized telephone wire belonged to the
defendant had encroached plaintiff’s airspace.
 Ellis v Loftus
 Held: The court held that as interference occurred, it is irrelevant to consider upon the
magnitude of the interference.
 Lord Bernstein of Leigh c Skyviews and General Ltd
Facts: The plaintiff brings action of trespass against defendant and alleged that the
defendant had taken a picture of plaintiff’s premises from the air.
Held: The court held that the defendant is not liable for trespass because the plaintiff
has limited right regarding the airspace above his land. The court mentioned that the
landowner right in airspace only extend to reasonable height, such height will ensure
that the landowner will enjoy his land without any interference, anything above such
height does not belong to the landowner, hence the landowner will have the same
right in airspace as any member of public .
 Note: If a person’s right of possession of land had been affected by the aircraft,
the person can bring action under S.19 of Civil Aviation Act 1969,
 S. 19 of Civil Aviation Act 1969 spelt out that “Where material damage or loss is
caused by an aircraft, damages shall be recoverable from the owner of aircraft in
respect of such damage or loss without proof of negligence or intention or other
cause of action”.
 S.19 is also a strict liability provision because it did not require any proof of
negligence or intention, it will be sufficient as long as the aggrieved person can
prove that he had suffered loss or damage.
 S.19 provides another path for aggrieved person to bring action other than
trespass to land.
Trespass ab initio
Issues: Whether there is trespass ab initio?
Cases:
 Six Carpenters’ case
 Held: The court held that the if the defendant had abused his right to entry authorized
by the law, and use such right to simply enter to plaintiff’s land, the defendant will be
deemed as trespass ab initio, which means he had committed trespass from beginning,
even though the defendant may claimed that his entry is done innocently.
 Cinnamond v British Airports Authority
Facts: The mini-cab drivers abused their right of entry to the airport, by not paying the
fines imposed upon them and loitering, touting to wait for passengers.
Held: The court held that the mini-cab drivers had committed trespass ab initio
because they had abused their right of entry to the airport.
 Elias v Pasmore
Facts: The defendant was under warrant to seize some documents from plaintiff’s
premises; however, the defendant also confiscated other documents which were not
authorized by the warrant.
Held: The court held that the defendant was liable for trespass ab initio for the
unlawful documents they had seized, however, the defendant was not liable for
trespass ab initio for the documents which they confiscated lawfully.
 Note: Trespass ab initio must consist of positive act, which means that there will
be no trespass if no action was being carried out.
Trespass Upon Alienation
Issue: Whether there is trespass upon alienation?
 According to S.76 and S.77 of National Land Code 1965, when the State Authority
transferred or disposed interest of land to another, such act amounts to alienation of
land.
Cases:
 Rubber Industry Smallholders Development Authority v Telekom Malaysia Bhd
Facts: In 1990, a plaintiff had received alienated land from the State Authority. Before
such alienation of land in 1990, the defendant had placed their things upon the land,
hence when the plaintiff received the alienated land, he brought action of trespass
against defendant.
Held: The court held that the defendant was liable for trespass even though their act
was unintentional because they did not had knowledge that the land had been
alienated, their act of trespass is established when they fail to remove the things from
the alienated land even though they were being ordered.
Persons who may claim
Issue: Whether the person has right to bring action of trespass?
 Only a person who has possession over the land can bring action of trespass.
Possession means that a person has physical control over the land. The mere fact that
the person is using the land or staying at the land did not satisfy the requirement of
possession, hence, such person cannot bring action of trespass, as stated under
Binariang Communications Snd Bhd v I & P Inderawasih. A person who has
possession over the land did not need be registered owners, however, in the
circumstances of vacant land, registered owner would be deemed to have sufficient
possession over the land and he can bring action under trespass as held in Yip Shou
Shan v Sin Heap Lee-Marubeni Sdn Bhd. In addition, if the right of possession of
land is doubtful, the possession will usually belong to the person with the tittle as
stated in Cheong Kee Teck v Quah Hoay Kwan & Ors.
Cases (Tenant who has possession, not landlord)
 Abdul Muthalib bin Hassan v Maimoon bte Haji Abdul Wahid
Held: The court held that when the landowner had rented out his premises, the
possession over the premises belonged to the tenant, and not the landlord. The court
also held that the landlord will be liable for trespass if he had restricted the tenant’s
right of possession by locking up the premises to prevent the tenant for accessing such
premises.
 Ismail v Haji Taib
Held: The court held that the landowner cannot bring action of trespass against lawful
tenant because the lawful tenant has lawful possession over the premises, in fact, the
 tenant can bring action of trespass over the landowner if the landowner had entered
the premises without the consent of tenant.
 Jones v Llanrwst
Held: The court held that the landowner can only bring action of trespass after the
contract of tenancy had ceased, because the landowner will have possession over the
premises since the interest upon the land will be granted back to him.
 Note: The landowner can still bring action of trespass even though the
landowner did not have possession over the land, but on condition that he must
prove that the tenant or third party had caused damages to such land which
affects the landowner’s reversionary interest.
Types of Possession
Issue: Whether the situation amounts to any type of possession?
(i) Possession in fact and jus tertii
 Possession in fact means that the plaintiff has the right to such land and his right can
exclude others from claiming the land. Person who has possession in fact upon the
land can bring action of trespass against any person except person who has better
possession in fact or person who acquire possession in law upon the land or person
who has immediate possession upon the land.
 Hence, if a plaintiff has possession in fact upon the land, the defence of jus tertii will
not be successfully raised by the defendant, unless there is another third party who has
better right of possession compared to plaintiff, and the defendant was under the
instruction of such person.
 Jus tertii is a defence which claimed that the 3rd party had better right of possession of
the land compared to the plaintiff.
Cases:
 Graham v Peat
Held: The court held that as long as the plaintiff occupied the land, he can bring
action of trespass against anyone who wrongfully enter into his land, hence, this
means that it is not required for the plaintiff to acquire any interest or tittle upon the
land .
 Senik v Hassan & Anor
Facts: Defendant had possession over a state land, however, the possession was
without permission. The defendant give permission to the plaintiff to possess the land.
Later, there was a notice being served by defendant to plaintiff which required the
plaintiff to leave the land.
Held: The court held that since the defendant did not have better right to possess the
and, hence he is liable for trespass. The court even held that it is irrelevant that such
possession of land must be lawful, as long as there is prove of actual possession by
the person, he will be deemed to possessed the land against all person except another
person who can show better right of possession.
(ii) Possession in accordance with the law
 When a person has possession in law, the person is permitted to use his own name or
right to exclude all other claims. Usually, the person who is under this position or
 holder will be the landowner. Thus, it implied that a person who enjoy possession in
fact may also enjoy possession in law.
 Case: Delaney v Smith
Facts: The defendant agreed to rent the house to plaintiff after the house were
repaired, but the defendant changed his mind. Nonetheless, the plaintiff still moves in
and the defendant wanted to get rid of the plaintiff, which amounts to defendant being
sued by the plaintiff.
Held: The court held that even though the plaintiff as a tenant has possession in fact,
but such possession did not give him the right to bring action against defendant who
acquired possession in law.
(iii) The right to immediate possession
 The right to immediate possession means that a person who did not acquire
possession at that time was being granted the right to continue having possession, or
to the right to have possession.
 Cases:
 Barnett v Guiford (Earl)
Held: The court held that if the trespass occur before the plaintiff was given
possession, but such trespass was committed after the plaintiff had acquired right to
immediate possession, the plaintiff may bring action of trespass started from the date
he was given right to immediate possession to the date of plaintiff enter the land. This
situation can also be known as trespass relation. ‘
 Yip Shou Shan v Sin Heap Lee – Marubeni Sdn Bhd
Held: The court held that if a person acquired right to immediate possession until a
later time, all the possession in relation to right to immediate possession will only
exists at the time when he should have possession.
(iv) Co-owners
 Ong Hoo Hong v Kong Yin Weng
Facts: The plaintiff who acquired 24/80th share on a piece of land alleged that the
defendant who acquired 56/80th undivided share on such land, had committed trespass
due to the defendant had occupied the land unlawfully.
Held: The court held that each co-owner had equal possession of the land as a whole,
trespass will be constituted if one of the co-owners had prevented the other co-owners
from entering such land. In this case, the defendant is not liable for trespass because
he did not deny the plaintiff’s right to enter the land. The court also held that co-
owner can only bring action of trespass against each other if such co-owner was being
prevented from entering the land.
(v) Possession under a temporary statutory license (TOL)
Cases:
 Julaika Bivi v Mydin
Facts: The defendant is the first TOL owner, but his license was being revoked, the
plaintiff was the 2nd TOL owner, and the plaintiff is being granted to stay on the land.
However, when the plaintiff planned to move in, the defendant still occupied the land.
 Held: The court held that the plaintiff could bring action of trespass against defendant
since the defendant’s TOL had been terminated.
 Liew Yu Fatt v Teck Guan & Co Ltd
Held: The court held that TOL holder could filed suits of ejectment in tort against a
trespasser.
 Mohamed Said v Fatimah
Facts: The plaintiff’s TOL license expired on December 31, 1960. However, the
plaintiff still brings action of trespass against defendant on May 6, 1961, even though
plaintiff’s TOL license had expired. Later, on July 5, 1961, the plaintiff renewed his
TOL license.
Held: The court held that the plaintiff could not bring action of trespass against
defendant, because the plaintiff did not have right of possession to land at that time,
since plaintiff’s TOL license had expired.
Where actual damage occurs
Issue: Whether there is method to measure damages?
 Plaintiff is not required to prove that actual damages had occurred, because trespass is
actionable per se. Damages are usually being granted in the form of nominal damages,
such damages is to ensure that the plaintiff’s infringement regarding their right to
possession to land is being recognized by courts. There are two methods to measure
the damages, such methods are being laid down in Beatrice Ramanathan (f) & Anor
v Shah Alam Properties Sdn Bhd & Anor.
 Cases:
 Beatrice Ramanathan (f) & Anor v Shah Alam Properties Sdn Bhd & Anor
Held: The court held that if the plaintiff had suffered some form of damages, the
method to measure the damages for trespass to land will be decrease in value of land
or property suffered by the plaintiff, in the case if the plaintiff possessed the exclusive
possession, the method used will be the expenditure used to repair such property.
 The rationale behind the measures of damages is to ensure that the plaintiff was being
restore to original position as if the trespass to land had never happened to him, hence,
sometimes the two methods to measure damages will be implemented.
 The first method to assess the damages is calculated by comparing the capital value of
property before occurrence of damages with the value of property in damaged
situation, such difference between the values will be given to the plaintiff.
 The second method to assess the damages is by considering the expenditure used to
repair or restore the property or land.
 In order to determine which suitable measures to be used, there are a few factors need
to be taken into account, first, is whether the plaintiff had intention to use such
property in the future, and second is the rationality of plaintiff’s intention.
 As an illustration, if the plaintiff had reasonable intention to sell the damaged
property, the method used to measure the damages would be the diminution value of
such property. However, if the plaintiff had reasonable intention to continue staying at
such land and he also intended to fix the damages occurred on the land, the method
used to assess the damages would be the expenditure used to repair the damages.
  Both methods to measure the damages would be used if there is an in-between
situation as stated in Dodd Properties (Kent) Ltd & Anor v Canterbury City
Council & Ors.
 If the court could not measure the value of land, such as when the land was intended
to be developed, but the development has not been carried out, in this situation, the
court would resort to assess damages based on the expenditure used for repairs, as
affirmed in Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan.
Defences
Issue: Whether there are defences available for the defendant?
 Defendant could raise a few defences to negate his liability for trespass to land.
(i) Statutory Duty
 Sometimes, when the local authority is in the course of carrying out their duty
authorized by the law, the works or actions may give rise to liability in trespassing
another’s land.
 Hence, in such situation, the local authority can rely on the defence of statutory duty
to negate their liability, by claiming that they were only carrying out their duty as
authorized by the statutes.
 Cases:
 Azizah bte Zainal Abidin & 5 Ors v Dato’ Bandar Kuala Lumpur
Facts: The defendant carried out a river channelling project, subsequently the river
was widened and caused some damage to plaintiff’s land.
Held: The court held that the defendant’s act was lawful as they were only carrying
out their duty as authorized by S.53(1) of the Street, Drainage and Building Act 1974,
which is to repair, improve or maintain any watercourses. Moreover, the court held
that their entry was lawful because they had adhered to the procedures laid down in
such provisions, namely the defendant had given notice and compensation to the
plaintiff.
(ii) Easement
 An easement means that a proprietor gives rights of a land to another person, such
right is to ensure that the other person can also obtained beneficial enjoyment
from the land.
 An easement must be registered by complying with the requirements and
procedures laid down in National Land Code 1965.
 Cases:
 Tan Wee Choon v Ong Peck Seng
Facts: The defendant used a path in plaintiff’s land to access to his own land, later
the plaintiff built a fence to prevent the defendant from using such path, but
defendant destroyed such fence.
Held: The court held that the defendant could not rely on the defence of easement
because there was no easement created between them, since such easement was
not registered in the first place.
 In Malaysia, we did not recognize the position of easement acquired through
prescription as stated in S.284(1) of NLC 1965.
  Easement encompasses positive and negative natures. Positive nature means that it
includes right to do something over the servient land. As an example, A (who is
the landowner) allows B to access to B’s land by building a path at A’s land.
 In contrast, negative nature means that it includes the right not to do something.
As an example, A (who is the landowner) is not allowed to build wall on his land
or between A and B’s land to prevent the wall encroached upon B’s land, which
would disrupt B’s land from receiving light.
 There are a few characteristics of an easement, as stipulated in Re Ellenborough
Park.
 Cases: Re Ellenborough Park
Held: The characteristics of easement are
- The easement must consist of domain tenement (the person who will enjoy
benefits from such easement) and a servient tenement (the person who grants the
benefits).
- The owner of dominant and servient tenement must not be the same person, in fact
they must be different persons.
- The easement must adapt to the interest of dominant tenement.
- A land may only be subjected to easement if the land concerns the subject matter
of a grant.
 The defendant may also raise the defence of equitable easement.
 In Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor, the court held
that an equitable easement may arise due to promissory estoppel, which is based on
the principle of constructive trust. The doctrine will form contractual obligation and
the obligation will be implied into the agreement between defendant and plaintiff to
grounds of necessity.
(iii) Acquiescence
 Acquiescence also means agreement or consent or permission.
 Case:
 Kwong Hing Realty Sdn Bhd v Malaysia Building Society Bhd (American
International Assurance Co Ltd, Third Party)
Held: The court held that to successfully raise the defence of acquiescence, the
defendant must prove that the plaintiff was being notified and consented to such state
of affairs being done on his land.
(iv) Denial of Possessory Tittle
 Case:
 Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan
Held: The court held that the defence of denial of possessory tittle is a valid defence
for trespass to land, this defence is used to deny that the plaintiff has the actual
possession of the land.
 This defence is very important because sometimes a person who was given the
ownership to the land did not own the actual possession of the land.