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The common law abandonment of easements on Torrens land - Can it be done, and, if so, should the intent of predecessors in title be taken into account?
journal contributionposted on 2023-05-16, 19:40 authored by Lynden Griggs
A number of recent decisions have highlighted the question of whether a common law abandonment of easements can occur in respect of Torrens title land in circumstances where the title to the dominant tenement makes express reference to the easement. Though not having to resolve this question, as abandonment was in fact found not to occur, the courts pondered the difficult question of whether abandonment can be permitted, and perhaps more critically, whether it was only the acts of the current registered proprietor that could be taken into account, or whether the conduct and intent of previous owners should also be considered. The argument that will be made that common law abandonment should not be permitted, and if it is (by legislative direction), then only the conduct and intent of the current registered proprietor [*2] should be considered. Support for this reasoning will be found in an examination of what the goals of Torrens are, as well as consideration of economics, both neoclassical and behavioural.
Publication titleAustralian Property Law Journal
Department/SchoolFaculty of Law
Place of publicationSydney
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