138LRequirements for application

138L Requirements for application

(1)  [Section 138L Subsection (1) amended by No. 36 of 2012, s. 41, Applied:13 Nov 2012] In addition to the requirements of section 138K(1) , an applicant for an easement under this Part must show that –

(a) [Section 138L Subsection (1) amended by No. 23 of 2021, s. 109, Applied:01 Jan 2022] during the relevant period, the applicant has enjoyed the easement in the relevant land as of right; and

(b) the easement has not been enjoyed by force or secretly; and

(c) during the relevant period, the enjoyment of the easement has not been by virtue of a written or oral agreement made before or during that period unless the applicant can show that the relevant period commenced after any such agreement had terminated; and

(d) during the relevant period, there has been no unity of seisin of the relevant dominant and servient tenements; and

(e) [Section 138L Subsection (1) amended by No. 23 of 2021, s. 109, Applied:01 Jan 2022] during the relevant period, the owner of the servient tenement knew, or as a reasonable owner of land diligent in the protection of the owner’s interests ought to have known, of the enjoyment of the easement; and

(f) the right for which the easement is claimed is not of a temporary nature; and

(g) the applicant is the holder of an estate in fee simple in the dominant tenement or is under this Act or any other law entitled to such an estate as against the holder of an estate in fee simple in the servient tenement –

and the applicant must produce evidence from at least one disinterested person in support of the easement claimed.

(2)  [Section 138L Subsection (2) amended by No. 23 of 2021, s. 109, Applied:01 Jan 2022] [Section 138L Subsection (2) amended by No. 36 of 2012, s. 41, Applied:13 Nov 2012] An application under this Division is, unless the Recorder otherwise directs, to be supported by a plan of survey, with survey notes, of the land in respect of which the easement is claimed certified as correct by a surveyor registered and certificated under the .