In Les Denny v Delma Valmorbida [2025] VSCA 319, the Court of Appeal upheld the decision of Justice Gorton in Delma Valmorbida v Les Denny [2023] VSC 680, to confirm the operation of easements by prescription in Victoria (or rights of long user).

The Court of Appeal concluded that at general law, an easement can arise based on 20 or more years of use, despite changes in ownership of the relevant land during the period of use.

Further, it held that:

• section 42(2) of the Transfer of Land Act 1958 (Vic) creates a number of exceptions to indefeasibility in respect of several ‘paramount interests’, including unregistered easements ‘howsoever acquired’.
• while there is an obvious tension between the policy of certainty of registered title and the express preservation of certain unregistered interests in land, the legislative history strongly supports a conclusion that the legislature has deliberately chosen to allow prescriptive easements acquired by long use as an exception to indefeasibility of title under the Transfer of Land Act; and
• unless and until Parliament amends the Transfer of Land Act to limit or remove the exception for unregistered easements in s 42(2)(d), the Court must give effect to the exception, despite the potential for it to operate unfairly.

See Les Denny v Delma Valmorbida [2025] VSCA 319: