LAW 201: LAW OF TORTS II

SEMESTER 1, 2022

NAME: PRIYANSHA KUMAR

STUDENT ID: 20190130

Page 1 of 7
 ISSUE

How can George seek easement on Victors’ land to get access to the nearby lake?

RULES

Section 106 – property Law Act of Fiji

Section 48 – Land Transfer Act of Fiji

Section 159 - Land Transfer Act of Fiji

Section 3 – River and Stream Act of Fiji

ANALYSIS

The right of way issue of George deals with the principles from land law and property
law known as Easement. An easements is a legal right that one individual has over
someone else's territory. These are intangible property rights that link to the territory in
the same way as gains do. Firstly, a dominating and a registered proprietor tenancy
should exist. This requirement is at the essence of what an easement is all about.
Easements are privileges that are performed over another area of land for the advantage
of one area of landThis implies that there should be territory that benefits (the
dominating tenant) and territory which is encumbered (the servient tenement). The
easement never arise "in gross" (Hawkins v Rutter (1892)), because both the dominating
and servient property should be identified just at moment the easement is formed. It is
not possible to construct easements for property that has not yet been recognized
(London and Blenheim Estates, 1993). That's where easements vary from profits à
prendre, which, while often a cost on certain territory, can be appreciated by someone
who does not own any territory. And this isn't a profit à pending situation.

Page 2 of 7
When territory is given or leased to a private entity, the easement is transferred directly
with it. The higher the burden on land and natural resources, the more easements is
needed. The benefits of rights of way and rights to light, air and water all become more
important when an increasing number of people start to occupy a limited area and
when different and sometimes competing uses of land develop. Easements are regarded
as being part of the land or encumbrances on the land. There are four types of easement
involved in the doctrine of easement and they are; Easement by grant or express
easement, Easement by reservation, Easement by implication and Easement by
prescription. Express easement is established by the written agreement between the
owners of servient land (Victor) and dominant land (George). The construction of an
easement by reservations occurs when one party specifically reserves the power to
preserve an easement in properties which is being acquired. Since there is no registered
easement but the conditions indicate that one was planned, Easement by Implication
occurs. They frequently occur whenever anyone splits a block of land and transfers part
of it to somebody else.1.  Easement by prescription is created by adverse possession.

In the case of George, there will be involvement of positive easement as it deals with
right of way/path to access the lake. In the case of George it is quite evident by
studying the fact that easement by grant cannot be used in this case since Victor had not
granted easement to his lesee whom he had given land behind his house adjacent to
George’s property, so obviously by this logic Victor will not allow George to utilize his
land as path for the access of lake for free of cost.

When an individual’s utilizes a section of some other person's property repeatedly and
publicly even without owner's consent, this is known as a prescriptive easement. This is
especially often in rural regions, when a landlord is unaware that their territory is being
exploited.2. This cannot be applied in this circumstances because it is understandable

1
(Pulgininorton.com) https://www.pulgininorton.com/easements-by-implication.html#:~:text=Easements%20by
%20implication%20exist%20when,the%20parcel%20to%20somebody%20else. accessed June 19, 2022

2
Dehan A, “Prescriptive Easements: What Are They?” (Rocketmortgage.com, 20200916)
https://www.rocketmortgage.com/learn/prescriptive-easement accessed June 19, 2022

Page 3 of 7
that Victor will see George and his family going to lake using his land and this might
piss him off which might result in george and family getting charged for trespassing.

Hence, the simplest way for George to seek easement from Victor is by negotiating with
him and reaching out a suitable value for the compensation of easement given by Victor
or best solution is going to the assessor to value the reasonable compensation price
which Victor will be entitled. This solution was seen in the case of ABI-K Pty Limited v.
Frank Shi - A landlord was given large pay (up to $40,000.00) for an easement for
pipelines around one of his estate's boundaries, mostly in the construction setbacks
zone3. The landlord opposed the proposal and wanted $250,000.00 in damages. The
Council evaluated if the easement met the standards of s88K and eventually granted the
easement and $21,500.00 in damages. To add insult to injury, the court also ruled that
the landlord's denial to provide the easement was unjustified in light of the substantial
sum given, and directed the landlord to pay the user's fees in filing the lawsuit. Even if
this will be ethically wrong for George to pay access to lake, which is owned by no one
but this can be the best solution for this situation because this solution will maintain a
healthy relationship between two neighbors and George will be able to direct access to
lake. This can be also called a contractual license, where George will get authority from
Victor on certain terms and conditions to access his land without being labeled as a
trespasser.

If Victor rejects negotiation and does not agrees to give out easement to George then the
final option for George is to seek assistance from judiciary system by filing petition for
easement and this can be done by using section 3 of River and Streams Act of Fiji which
states that; “

3
Goodrick A, “When Can You Refuse a Neighbour’s Request for an Easement over Your Property?” (Atkinson
Vinden Lawyers, October 5, 2017) https://www.avlawyers.com.au/blog/can-refuse-neighbours-request-easement-
property-2/ accessed June 19, 2022

Page 4 of 7
The banks of the said rivers to the breadth of 20 feet from the ordinary water-line in the wet
season and the highest spring tide shall be subject to an easement in favour of the public for all
purposes necessarily incident to the free use of the rivers.”

This will give total rights to George and due to this clause no one will be able to stop
George from being front of the homes of other residence residing there but in order to
gain right of path to go to river can use Section 106 – property Law Act of Fiji by which
application of easement

An easement over land may be created without being attached or made appurtenant to other
land, and such an easement shall run with and bind the land over which it is created, and all
persons claiming title to that land by, through or under the person creating the easement; and
the easement so created shall be to all intents and purposes an incorporeal hereditament, and
shall be assignable accordingly through court can be done.

Not only this, the property law clause will be supported by clause 159 (1) (2) and (3) of
land transfer act mentions that;

(1) A proprietor of any land subject to the provisions of this Act may when depositing a map
or plan of such land under the provisions of section 158 create an easement, other than
an easement in gross or an easement of access of light or air, over so much of the land on
such map or plan as is shown and marked as such thereon by executing a certificate of
easement in the prescribed form.
(2) ) The certificate of easement shall describe the land to be subject to the easement and the
sub-divisional lots on such map or plan and any other areas of land to which it is
intended that the easement is to be appurtenant and shall set out the nature of the
easement and the conditions of the grant thereof.
(3) The certificate of easement shall be lodged for registration with the Registrar at the same
time as the map or plan is deposited, or at such other time as the Registrar shall, in his
absolute discretion, allow, and the Registrar shall enter a memorial of the certificate of
easement on the folium of the register constituted by the instrument of title.

Page 5 of 7
In Ba Town Council v Becharbhai Holdings Ltd (unreported, FCA 112/1985) upheld the
responding firm's legal right to utilize a piece of property represented on a map as a
back path to its plot regardless of the fact that it was not recorded as an easement on the
servient tenement, saying:

In Fiji, as in New Zealand, an easement over property could only be formed through the
easement authorization process under Section 159 or by means of formal policy
statement of handover. However, as clearly illustrated in Carpet Import Co Ltd v Beat &
Co Ltd [1927] NZLR 37, a registered owner can generate an equal and fair easement in
favor of people  or others4.

The same procedure was also owned up in the case of Stephens v Nunnink [2020] FJCA
25 where the first and second plaintiffs purchased Horseshoe Bay Investment Pty Ltd
(the 3rd plaintiff) which is the registered proprietor of certificate of title No.26169 (CT
26169) being Lot 7 on DP 6618. Although the purchase was complete, the first and
second plaintiffs later discovered that despite provisions for easement appearing in
certain documents affecting CT 26169, in reality no legal easement existed to access the
land. The first and second plaintiffs requested the first defendant, who is a director of
the second defendant company (which is engaged in the business of land development,
subdivision, and sales to prospective buyers) through which the plaintiffs bought the
land in question, to remedy the situation. The first defendant did not respond to the
said request positively. Although the Plaintiffs had complained to almost all the
relevant authorities they state that it was to no avail 5. Decision was in favor of the
plaintiffs.

George can utilize these clauses of Fiji’s legislation to gain right of way to get access to
the lake. There are high chances that George will not have to pay Victor a single penny

4
Farran S, South Pacific Property Law (Taylor & Francis Group 2004)

5
(Paclii.org) http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJCA/2020/25.html?
stem=&synonyms=&query=section%20159 accessed June 19, 2022

Page 6 of 7
to gain access to lake, but this will definitely spoil their relationship if they are currently
in good terms right now.

In this circumstance, the servient owner (Victor) will not be required to do anything
other than enable the dominant owner (George) to use his easement without hindrance.
He will also not be obligated to preserve the easement's subject matter in good repair so
that the dominant owner can use his or her privilege 6. As a result, in this circumstance,
the easement is a right of way, and Victor is not obligated to maintain the roadway or
drainage.

CONCLUSION

In summation, this issue is based on easement whereby an owner of dominant land

(George) will require permission from servient land owner (Victor) to a right of path to
gain access of lake. This can be done by both neighbors negotiating with each other
terms and conditions also with money benefit, this can be also called contractual license,
because I doubt that grant easement and perspective. If things cannot go by trying
contractual license then the only way left is to approach court and use Section 106 –
property Law, Section 48 – Land Transfer, Section 159 - Land Transfer act of Fiji to get
right of way to lake because Section 3 – River and Stream Act of Fiji allows each and
every citizen of Fiji to get advantage of the creeks and river resources.

6
Chappelle D, Land Law (8th edn, Longman 2007)

Page 7 of 7