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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?

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Griggs, LD (2007) 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? Australian Property Law Journal, 14 (2). pp. 162-178. ISSN 1038-5959

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Abstract

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.

Item Type: Article
Journal or Publication Title: Australian Property Law Journal
Publisher: LexisNexis
Page Range: pp. 162-178
ISSN: 1038-5959
Date Deposited: 07 Apr 2008 14:07
Last Modified: 18 Nov 2014 03:33
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