Property Law Update - Can you still establish an easement by prescription (or long use) in Victoria?

Property Law
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It is not uncommon for a property owner to use their neighbour’s land as a means of access or egress, even though they may have no formal right to do so.

There may also be instances in which this use has continued unchallenged for such a length of time that to deny its existence could amount to injustice. In such cases, it might said that an easement by “prescription” or long use has been achieved.

If the use has carried out for an uninterrupted period of 20 years, a prescriptive easement can be established, subject to the following principles:

  1. enjoyment must be without violence, secrecy or consent and use must be ‘as of right’;
  2. the owner of the land in question must acquiesce in their neighbour’s exercise of the easement;
  3. the easement sought must be permanent; and
  4. there can be no unity of possession of both the alleged dominant and servient tenements (or parcels of land).

Given that these principles focus on the position of both the claimant and the owner of the land, it is necessary to consider both the acts of the claimant and the responses of the owner in assessing whether the 20-year time period has been established.

Although prescriptive easements have long been upheld in Victoria (for example, see Nelson v Hughes [1947] VLR 277), the legal position in Victoria is now unclear.

Victoria’s land ownership system, known as the Torrens Title System, is a method of recording and registering land ownerships and interests in the Register Book of the Office of Title. The Register aims to provide a true, correct and complete description of all land in Victoria.

One departure from this ideal is described in section 42(2)(d) of the Transfer of Land Act 1958 (Vic) which allows for easements ‘howsoever acquired’, suggesting that the acquisition of easements via prescription might still be a recognised principle under Victorian law:

42 Estate of registered proprietor paramount …

(2)           Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to—

… (d)          any easements howsoever acquired subsisting over or upon or affecting the land;

As prescriptive easements are created through use, they are not recorded on the Register, leading to an apparent inconsistency between prescriptive easements and the Torrens system, as noted by the Court of Appeal in the recent case of Laming v Jennings [2018] VSCA 335:

186     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. 

The Court of Appeal concluded that the rationale of concepts such as prescriptive easements has diminished with the advent of modern systems for the registration of title:

195     … the historical rationale of legal fictions such as the doctrine of lost modern grant has significantly diminished with the advent of modern systems for the registration of title, comprehensive planning laws and more mature land law jurisprudence.

However, the Court did not definitively resolve the question as to what extent prescription remains compatible with the Torrens System:

186     … In our opinion, these issues were not sufficiently explored before us to enable us to reach an informed decision on ground 4. Accordingly, we will refrain from expressing a final view on the question raised by that ground until such time as it requires determination in a future case.

So it would seem that the existence of prescriptive easements in Victoria is still an open question. Where available, the prospect of establishing a road might be a safer bet.

*Matthew Townsend has an online blog, Restrictive Covenants in Victoria, in which he discusses cases and news about restrictive covenants in Victoria. 

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Matthew Townsend has been a barrister for more than 20 years and practises exclusively in planning and environment and property law.

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