Written by Fabio Salemi.
Property easements come in various forms and are generally described as the right to use another person’s land without occupying it. One form of easement is a prescriptive easement, which provides a common law pathway to gain access to land that has been openly and continuously used without permission for a specific statutory period. Whilst in the past, prescriptive easements have been upheld by courts, some recent court decisions in Victoria have introduced a degree of uncertainty. This article explores the key steps and considerations for claiming a prescriptive easement in Victoria.
When it comes to establishing a prescriptive easement, the onus lies with the claimant, who needs to establish the following elements:
1. The claimant’s enjoyment of the land the subject of the easement must have been neither by violence, nor by stealth, nor by leave asked from time to time and the use must have been ‘as of right’;
2. the owner of the land has acquiesced to the claimant’s use of the easement;
3. the easement sought by the claimant must be permanent; and
4. there can be no unity of possession of both the claimant’s land and the easement.
In order to establish the existence of a prescriptive easement, the above elements must be established by the claimant for an uninterrupted period of 20 years.
The whole law of prescription is said to rest on the acquiescence of the owner of the burdened land and it is worthwhile noting that landowners are bound by the acquiescence of those that preceded them in title.
Victorian legislation provides that an easement may exist ‘howsoever acquired’, inferring that prescriptive easements are recognized by law. Specifically, section 42(2)(d) of the Transfer of Land Act 1958 specifies that “land which is included in any folio of the Register or registered instrument shall be subject to …any easements howsoever acquired over or upon or affecting the land”.
The legislation, in its original form, referred to ‘any easements acquired by enjoyment or user or subsisting over or upon or affecting the land’. This was later amended by replacing the words ‘acquired by enjoyment or user or’ with the words ‘howsoever acquired’. In the context of statutory interpretation, it may be inferred that this amendment was made specifically to extend the scope of the legislation to apply to all easements irrespective of how they were acquired, including easements acquired under the common law rule of prescription.
A claimant does not necessarily need a declaration from a court to establish the existence of a prescriptive easement, so long as he or she can establish the requisite elements as identified in this article.
However, where an owner of the burdened land shows resistance or objection to a prescriptive easement claim, it may be necessary to seek a declaration from a court that a prescriptive easement exists in favour of the claimant.
Whilst prescriptive easements have in the past been upheld, the current legal position in Victoria is a little unclear, as there is an apparent inconsistency between the common law rule itself and the Victorian Torrens Title System, which maintains a comprehensive land register that records all relevant information pertaining to land ownership and interests. In the case of Laming v Jennings [2018] VSCA 335 it was noted that ‘complex issues of statutory interpretation, legislative history and the continuing relevance of legal fictions which may conflict with the public policy underpinning the Torrens system are involved’. So, the existence of prescriptive easements in Victoria currently remains unanswered.
If you are the owner of land burdened by a prescriptive easement claim, or you believe you may have grounds to claim a prescriptive easement yourself, we recommend that you first seek legal advice. Eales & Mackenzie are experienced property lawyers in Melbourne and Essendon, for more information, we recommend you get in touch with commercial lawyers Melbourne, Fabio Salemi or Richard Mackenzie on 8621 1000 (Melbourne office) or 9331 1144 (Essendon office).
The contents of this publication, current at the date of publication set out above, are for reference purposes only. It should not be construed as legal advice or relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this article.
