Office Circular No. 18/2024 DATE: 20 August 2024 DISTRIBUTION: GENERAL SUBJECT: UPDATE ON THE RECORDER OF TITLES’ VIEW OF SECTION 138J LAND TITLES ACT (THE ACT) An analysis and in-depth review of section 138J of the Act has been recently completed by the Land Titles Office. Section 138J of the Act provides that -

(1) A person who has exercised rights which may amount to an easement at common law for a period of not less than 15 years, or not less than 30 years if the owner of the land is a person under disability, may apply, in accordance with Division 3 , to the Recorder for an order vesting an easement in respect of those rights in the person.

(2) An application is to be in a form approved by the Recorder.

(3) The Recorder may make an order referred to in subsection (1) in favour of – (a) an applicant who, after giving notice under section 138K(1) , continues to exercise rights which the Recorder considers may amount to an easement; or (b) an applicant who, after giving notice under section 138K(1) , has been prevented or hindered in the exercise of rights which the Recorder considers may amount to an easement by the direct or indirect action of the owner of the servient tenement; or (c) an applicant who has exercised rights in accordance with subsection (1) which the Recorder considers may amount to an easement but, before giving notice under section 138K(1) , has been prevented or hindered in the further exercise of those rights by the direct or indirect action of the owner of the servient tenement if the applicant gives notice under section 138K(1) within 180 days after first becoming so prevented or hindered in the further exercise of those rights. Position of the Land Titles Office The Land Titles Office adopts the position that an applicant pursuant to section 138J must demonstrate that an applicant has personally exercised rights that amount to an easement at common law for not less than 15 years (or for 30 years if the owner is under a disability). It is not possible due to the wording of section 138J for an applicant to rely upon the fact that predecessors in title exercised the rights of the alleged easement in addition to the period in which an applicant has used the alleged easement. This does not satisfy the requirements of the Act. In forming this view, reliance has been placed on general principles of statutory construction. The plain meaning of the text of s 138J indicates the right to apply for an easement by possession arises because of the exercise of rights by the applicant. Also in support of this view are the requirements of section 138L of the Act. Section 138L(1)(a) states (in summary) that an applicant for an easement under this Part must show (amongst other things) that during the relevant period, ‘the applicant has enjoyed the easement in the relevant land as of right’. The provisions in the Act refer to the applicant enjoying the use of the alleged easement for the required period, continuing to do so and does not include the enjoyment of any predecessors of title. Similarly, section 138L(1)(g) of the Act states that an applicant must be 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. Further, it is clear the right to acquire easements in s 138J was intended to replace the entitlement arising at common law by way of prescription and the doctrine of lost modern grant. Section 138I unmistakably abolishes the rule of law known as the doctrine of lost modern grant and supersedes the acquisition of easements by prescription from 2001 onwards, when the provisions came into force. Section 138J was inserted by the Land Titles Amendment (Law Reform) Bill 2000 (Amending Bill). The Amending Bill was intended to update and overhaul the law related to prescriptive easements and to narrow any capacity to obtain an easement by long use by allowing an objection to stay the application unless serious hardship is proven (s 138K(4)). Conclusion In assessing section 138J applications, predecessors’ time added to an applicant’s time will not be sufficient to arrive at 15 years or 30 years. ROBERT MANNING Recorder of Titles Contact Land Titles Office Level 1, 134 Macquarie Street Hobart TAS 7000.