Office Circular No 4-2001

12 April 2001


Attention is drawn to the above Act which has passed both Houses of Parliament and received Royal Assent on 12 April 2001.

The Act is an omnibus measure dealing with matters of substance as well as matters of machinery.

In certain respects its purpose is to cure certain anomalies, correct minor errors, re-numbering of sections and generally to tidy up parts of the Land Titles Act 1980 in order to present it in a better form.

The principle matters of substance are provided for by clause 16 which among other things inserts into the Land Titles Act 1980 Part IXB titled Possessory Title and are in association to the acquisition of easements by possession and title by possession of land.

Part IXB is applicable to both land registered under the Land Titles Act 1980 and to land held under the Common Law or Old System of Title, section 138H.

The following is an outline with regard to acquisition of easements by possession and title by possession of land.

1. Acquisition of Easements by Possession

The Act is to be the source of origin with relation to the acquisition of easements by possession - section 138I.

The Prescription Act 1934 is repealed - section 22.

An application for an easement is made to the Recorder of Titles, as part of that process, an applicant must give notice to the owner of the servient tenement.

The owner of the servient tenement may object to the claim.

The objection will have the effect of extinguishing the application - section 138K.

The criteria required to be demonstrated by an applicant are specified in section 138L.

The criteria are well known being established as guidelines by numerous cases decided by courts of law in working out the principles applicable to prescriptive easements.

In seriatim they comprise :
  • The easement must be enjoyed as of right.
  • The easement has not been enjoyed by force or secretly.
  • During the relevant period the easement has not been enjoyed by virtue of a written or oral agreement made before or during the period.
  • During the relevant period there has been no unity of seisin.
  • During the relevant period the owner of the servient tenement knew or as a reasonable owner diligent in the protection of his interests ought to have known of the enjoyment of the easement.
  • The easement claimed must not be of a temporary nature.
  • The owner of both the dominant and servient tenement must hold an estate in fee simple in that tenement.
Where land is held in tenancy in common a claim can be made by one of the tenants - section 138M.
A claim cannot be made for an easement in gross - section 138N.

The easement claimed must be one that is supported by the Common Law or Act of Parliament.

The easement must be of the same character extent and degree of use throughout the relevant period of acquisition.

Where subsequent to the vesting of an easement in an applicant the owner of that easement has exercised additional rights for the relevant period required on an easement with connection to those rights may be claimed.

To illustrate when an owner has vested in him a right of way of a width of 10 metres and subsequently uses the right of way for an additional width of 5 metres for the required period he is entitled to be given a right of way for the total width of 15 metres.

Alternatively there may be an enlargement of use from farming purposes to mineral purposes - section 138P.

No claim may be made for a profit a prendre - section 138R.

The owner of the servient tenement may lodge a caveat claiming that a person exercising easement rights is doing so by permission of that owner.

The effect of the caveat is to stop time running against the caveator, prevents time running in favour of the owner of the dominant tenement and the period of use of the easement prior to lodgment of the caveat is glossed over - section 138S.

Title by Possession of Land

Section 138T provides that a person in possession of land owned by another person may acquire title to that land.

The possession referred to is that which describes that concept of land ownership which develops from occupation of land over a long period of time known generally as adverse possession.

The limitation periods with bearing on this kind of possession continue to be provided for by the Limitation Act 1974 being 12 and 30 years respectively.

For the purposes of an application to acquire title to land by possession any period during which Local Government Authority rates are defrayed by the owner of the land are to be overlooked.

For example, if a person has been in possession of land for 30 years and the owner of the land has paid the rates on the land for 5 of those years the 5 years is to be ignored and the person in possession will be required to possess the land for a further 5 years in order to accumulate the required period - section 138U.

Section 138V as with acquisition of easements provides criteria to be considered in applications for title by possession of land. Again, they are familiar being laid down as guidelines by courts of law to be used when the issue arises of whether possession of particular land has been taken. The criteria consist of :
  • The applicant during the limitation period must have been in possession as of right.
  • Possession must not have been by force, secretly or by written or oral agreement made before or during the limitation period.
  • The nature and period of possession.
  • The improvements on the land.
  • Enclosure of the land.
  • Whether there has been any acknowledge by the applicant during the limitation period.
Section 138W and X reproduce substantial former sections 117 and 119 Land Titles Act 1980.

An application for title by possession of land cannot continue or create a subminimum lot as provided by the Local Government (Building and Miscellaneous Provisions) Act 1993 unless the Local Government authority otherwise provides or consents to the application - section 138Y.

Provision for caveats against applications for acquisition of easements and title by possession of land are stipulated in sections 138Z and ZA.

Alice Kawa
Recorder of Titles