33 th e high court stated that in making the order

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33The High Court stated that, in making the order for the grant of an easement of way in the earlier proceedings, it was satisfiedthatthe common law prerequisites for a right to arise as an easement had been fulfilled. As the learned judge explained:34[A]ll the four requirements for the creation of an easement of way are satisfied and these are: (1) there must be dominant and servient lands;(2) the easement must accommodate the dominant land;(3) the dominant and servient land-owners must be different persons; and (4) the right granted must be capable of forming the subject matter of a grant.These four basic characteristics of an easement, laid down in Re Ellenborough Park,35the locus classicuson the subject, were also referred to with approval in the subsequent case of Qiristar Bricks Contractor Sdn Bhd v 32 Alfred Templeton v Low Yat Holdings Sdn Bhd [1989] 2 MLJ 202.33 Templeton v Low Yat Holdings Sdn Bhd[1993] 1 MLJ 443.34 At 458. 35 Re Ellenborough Park[1956] 1 Ch 131 at 140.
Role of Equity and the Application of English Land Law 47in the Malaysian Torrens SystemLoo Ngan Keong,36where the High Court held that the plaintiffs had proved all the necessary elements and established their claim for an easement.In contrast, the provisions37in the National Land Code 1965 on easements do not clearly and comprehensively set out the prerequisites for a right to arise as an easement. While it is clear that a legal easement under the National Land Code 1965 can arise only if it is registered,38this has to do with the methods of acquisition of a right as an easement which is different from having to first establish that a right has the essential characteristics of an easement. Thus, recourse to English land law for the essential elements of an easement is necessary as the National Land Code 1965 lacks clarity in this respect. B. Elements of a LeaseSimilarly, the National Land Code 1965 does not spell out some of the essential elements of a lease, such as exclusive possession. The definition of a lease in s 5 of the Code39is not particularly helpful for this purpose. Again, recourse must be had to English land law for the essential characteristics of a lease.40To constitute a lease, the occupier must be granted exclusive possession for a fixed or certain periodic term in return for a payment.41This is subject to special circumstances which may negative any intention to create a lease or tenancy.42The Federal Court, in Woo Yew Chee v Yong Yong Hoo,43laid down the principle that whether a particular transaction amounts to a lease depends on the intention test. The nature and quality of the occupancy must be looked at to determine whether it is intended that the occupant should have an interest in the premises occupied or whether he should have only a personal privilege.44Having regard to the facts and evidence before it (such as the terms of the relevant agreement), the Federal Court found that the intention of the parties was to create a relationship of landlord and tenant. The intention test was 36 Qiristar Bricks Contractor Sdn Bhd v Loo Ngan Keong[2013] 10 MLJ 363 at [46].

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