The Rules Relating to Implied Grant of Easement

The rules relating to implied grant of easements have been described as “strange [and] magic-like” (Sexton and Bogusz, Land Law: Text, Cases and Materials, 2013, 3rd edn, OUP, p 565). Disregarding easements created by prescription, explain these “magic-like“ rules. Do the rules differ in the case of implied reservation of an easement and why is this the case? INTRODUCTION An easement is a right to do something on someone else's land, falling short of a right to possession. More specifically, it is a private right enjoyed by one property owner the "dominant owner", over land belonging to another, the "servient owner". Therefore, an easement imposes a burden on a piece of land (servient land) and constitutes a corresponding benefit to another piece of land (dominant land).An easement constitutes a property right in the servient land, and as such it is generally enforceable against a subsequent owner of the servient land and can be generally enforced by a subsequent owner of the dominant land. . In order to be an easement a right must fall within the criteria laid down in the case of Re Ellenborough Park[1]. The right must, (i) relate to a dominant and servient tenements, (ii) which are owned or occupied by different persons, (iii) accommodate the dominant tenement and (iv) "be capable of forming the subject matter of a grant". Furthermore, an easement will accommodate the dominant tenement where there is sufficient proximity between dominant and servient tenements and where the rights benefit the estate, rather than being a personal right. For instance, in the case of Hill v Tupper[2], where the claimed right benefited the dominant tenement owner’s business rather than the land, the right was incapable of being an easement. The final point takes in both the capacity of the grantor and grantee and that the right claimed falls within the range of rights recognised by the courts as being capable of amounting to easements and such rights as illustrated in the case of Webb v Bird[3], must not be vague or indefinite. Once we have established that a right has the characteristics necessary to be an easement we next need to consider whether an easement has actually been created. There are a number of ways by which an easement may be created. They may be made expressly by the parties or they may be created impliedly, the latter being what this assignment will be focusing on. IMPLIED GRANT ‘To some this was a fiction, to others an ingenious tool. Either way, it allowed the courts to get involved in the contents of contracts without infringing the principle of freedom of contract. Based on the theory that the courts were merely interpreting the presumed intention of the parties, they could incorporate new terms where the contract was silent.’ Appleby in ‘Contract Law’ 2001, published by Sweet and Maxwell, at page 197 There are a number of situations in which an easement may be impliedly granted or reserved as part of a land transaction. However, the courts are readier to imply a grant than a reservation, as we shall see further on. Easements arising by implied grantinitiallytake effect as equitable easements (pending the completion of the relevant lease or conveyance) but subsequently take effect as legal easements. The grant of an easement may be implied where the grantor, the owner of the servient land, disposes of part of its land. There are four ways in which an easement may be impliedly granted and these are by, (i) Necessity, (ii) Common Intention, (iii) Application of the rule in Wheeldon v Burrows[4] and (iv) s 62 of the Land of Property Act (LPA) 1925.

1. Easements of necessity

An easement of necessity may be granted by implication, where it is considered by the courts as necessary to do so. Firstly, an easement will only be implied by necessity where the estate cannot be used at all without it[5], therefore, necessity claims are usually based on claims to a right of way to ‘land-locked’ land, which is a piece of land is sold off which has no direct access to the public highway system. Without the implication, of an easement by the court, the land would be inaccessible. In the case of Manjang v Drammeh[6] the criteria for there to be an easement of necessity implied were laid down and these include: First, it should be shown that there was a common owner of a legal estate in the two plots of land – ie the plots were in common ownership at one stage. It must be established that access between one of those plots and the public highway can only be obtained over the other plot; and it must be shown that there was a disposition of one of the plots without any specific grant or reservation of a right of access. If there is an alternative access route then no matter how inconvenient this alternative is this may defeat the claim for an easement of necessity. Furthermore, where an easement is implied then the owner of the servient land can fix the route of the easement but it must be reasonably convenient (Pearson v Spencer (1861) 1 B&S 571) and once selected cannot be varied (Deacon v South Eastern Railway (1889) 61 LT 377). Furthermore, the case of London Corporation v Riggs[7] emphasises that an easement of necessity is restricted to the needs of the dominant tenement at the date of the grant. In this case Riggs acquired a piece of farmland which land locked and started tea rooms on his land. Eventhough, it was undisputed that Riggs had an easement granted by necessity over his land, but the question which arose was whether or not the clients of the tea rooms had the same right. It was held that, the way of necessity can only be used for the purposes for which the dominant land was being used at the time the necessity arose. Neither contractors building the tea rooms nor future clientele would have the right to use the easement. Therefore, the scope of an easement which is implied by the court by necessity is not a wide one. (ii) Easements of Common Intention

Implied easements of common intention were defined in the case ofPwllbach Colliery Co Ltd v Woodman[8], as easements necessary to give effect to the manner in which the land sold or retained was intended to be used and they are very similar to easements implied by necessity. However, the scope and extent of an easement implied by common intention may be wider than an easement being implied by necessity. An easement of necessity is only implied to the extent it is needed to enable the land to be used. However, if it can be shown that there was a common intention of the parties, the extent of the resulting easement may be greater.

Therefore, an easement of common intention can therefore arise by implied grant where, the parties have a common intention relating to the use of the dominant or servient land and an easement is necessary to carry out that shared intention. In the case of Wong v Beaumont Property Trust[9], a basement was leased to the plaintiff (Wong) for use as a Chinese restaurant. The lease required the tenant to use the property as a restaurant, but also to control all smells. To do that it was necessary for the Wong to install a ventilation shaft for the smells, which would have to go through the landlord's property, but the landlord refused to give such permission. Wong claimed there was an easement entitling him to put up the shaft. It was held that, there was an easement of common intention, because when the original tenant took the premises, a ventilation shaft was necessary in order for the restaurant to function properly and for smells to be eliminated. In this case, Salmon LJ explained: “[I]f a lease is granted which imposes a particular use on the tenant and it is impossible to use these premises legally unless an easement is granted, the law does imply such an easement as of necessity.” However it should be noted as already mentioned that the scope for creation of implied easements created by common intention is wider than one of necessity. There is an overlap with easements of necessity here as in both cases necessity is a requirement. Necessity and common intention, based on the presumed intentions of the parties are. However, vulnerable to express wording in the grant demonstrating a contrary intention in Nickerson v Barraclough, the conveyance expressly precluded the grant of any rights, and the estate remained landlocked. (III) The Rule in Wheeldon v Burrows The rule in Wheeldon v Burrows[10], requires evidence of a "quasi-easement". A quasi-easement is the use by the owner of a single estate or parts of that estate, in a manner such that an easement would be required if the use of those parts in that manner was to continue if one part was sold. Where a part of that estate is sold, the continued user (assuming the user "crosses" both estates) will be implied as an easement where the quasi-easement was "continuous and apparent" (this might include a roadway denoting a right of way, windows denoting rights of light, or a channel denoting the right to take water) and where its continuation as a "full" easement is "reasonably necessary for the enjoyment" of the dominant tenement (the part of the estate sold). What is “reasonably necessary” is not necessarily a high threshold. A right claimed by way of access will not be “reasonably necessary” if it is simply more convenient (Goldberg v Edwards[11]). However, in Borman v Griffith[12], where the estate benefited from an express right of access to the rear of the property, the courts held that a right of access to the front was reasonably necessary as it was the only way to get to the front door of the premises. The rule in Wheeldon, too, is vulnerable to evidence of a contrary intention. In Squarey v Harris-Smith [13], a standard term in the contract for sale excluded implied rights. The Court of Appeal, declined, on that basis, to find an implied right. (IV) S 62 LAW OF PROPERTY ACT 1925 Finally, s62 Law of Property Act 1925 will imply easements into the transfer of an estate where there is already diversity of occupation between the dominant and servient tenements (for instance on the purchase of a reversion by the tenant). It is long settled law that the operation of s62 can be expressly excluded in a transfer or conveyance. Section 62(1)provides that a conveyance of land shall be deemed to include and shall operate to convey, with the land, all ways, watercourses, liberties, privileges, easements, rights and advantages whatsoever and which (i) appertain or are reputed to appertain to the land or any part of it; or (ii) are, at the time of the conveyance, occupied or enjoyed with the land or any part of it. Furthermore, s62(4) provides that “This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.” The effect ofsection 62is that on a conveyance of part, quasi-easements exercised by the owner over its retained land, are granted as easements to the person acquiring that part of the land being conveyed. Case law indicates that mere permissions may be upgraded into easements. For example, where a licensee of land has used a right of way over other land belonging to the licensor with their permission, then that permission will be elevated into an easement by section 62 if a lease is subsequently granted to the licensee. For instance, in the case of Wright v Macadam[14], the landlord (defendant) gave his weekly tenant permission to use a shed in the garden for the storage of coal. Later, the landlord granted a new tenancy to the tenant of slightly larger premises (not including the garden). A dispute subsequently arose about the tenant's continued use of the shed. The court held that, there was a privilege (permission to store the coal) at the time that the lease was renewed and therefore s 62 was used to convert this privilege into a full easement. Therefore, in order for a privilege to be converted into an easement under s 62 it is necessary that the privilege exists at the time of the relevant conveyance (or lease). However, there is no requirement that the privilege be necessary or continuous and apparent. On the other hand, there are limits to the s 62 principle, since the right must still satisfy the characteristics of an easement under Re Ellenborough Park, mentioned above. For instance, s 62 only operates where there is a “conveyance”, which includes legal leases, but does not oral leases or documents creating equitable leases. Secondly, the grantor must have the power to grant the easement, i.e. he must be a ‘Competent Grantor’. Section 62 cannot confer a better title on the grantee than the grantor possessed (“nemo dat quod non habet”). Furthermore, s 62 only applies to convert privileges into easements. It could not be used to convert a quasi easement into an easement because in order for s 62 to apply, prior to the conveyance there must be a diversity of occupation (ie dominant and servient land must be owned by different people. IMPLIED RESERVATION A reservation of an easement happens when the vendor sells part of their land and reserves (or keeps) an easement over the land sold. However, courts are reluctant to imply a reservation because if a vendor wishes to retain a right, he should do so expressly in a conveyance. Implying a right is a derogation from grant. Therefore the only types of implied reserved easement are, by Necessity and Common intention and since courts will not allow an easement to be implied under the rule in Wheeldon v Burrows or s 62 in the case of a reserved easement. IMPLIED RESERVATION BY NECESSITY InUnion Lighterage Co v London Graving Dock Co [15]the claim failed, as there was no implied reservation, since (following the second limb ofWheeldon v Burrows) this would amount to a derogation from grant. This was not one of the exceptions to this rule (there was no necessity).In the case Stirling LJ, gave a description of implied reservation of an easement by necessity, stating that “an easement of necessity…means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property”. Therefore, According to Stirling LJs strict approach, the only situation where this kind of easement will be implied is where the land is land locked. placed on the well-established principle that an easement of necessity can only be implied where without it the land could not be used at all, not whereit is merely necessary to the reasonable enjoyment of the property Adealon International Proprietary Limited v Merton London Borough Council[16] The Court of Appeal has upheld the High Court's decision to reject a landowner's claim for the implied reservation of an easement of necessity. The landowner sold off land that adjoined its property on three sides, speculating that it would obtain planning permission for access to the retained land from the public highway which ran along the fourth boundary of the property. When the planning application was refused, the landowner claimed an easement of necessity over the land that had been sold off. The claim was rejected by both courts, on the basis that any rights of way required by the landowner could have been expressly reserved in the transfer when the adjoining land was sold off. The test of necessity can be a difficult one to satisfy. For example, access by water can be enough to prevent a right of way over land arising by necessity (Manjang v Drammeh (1991) 61 P&CR 194).However, in Sweet v Sommer[17] it was held that an easement of necessity was implied even though the landowner, at the time of the implied grant, could have obtained another means of access by demolishing a building on its own land. IMPLIED RESERVATION BY COMMON INTENTION An easement by reservation may also be implied by common intention and the same case law as for easement by grant will be applied, however they depend upon the presumed agreement of the parties. So it is possible, the rules relating to implied grant may be excluded in a contract for sale or lease. Extinguishment of easements, can be done expressly or impliedly. In the former case, the dominant owner must execute a deed giving up the easement and in the latter case, an implied release it can occur by (i) abandonment or (ii) a radical Change in nature of dominant land. For an easement to be deemed ‘abandoned’, as illustrated in the case of Benn v Hardinge[18], the servient owner can show (i) at least 21 years non-use and (ii) an intention on the part of the dominant owner to abandon the easement. Whereas, a radical change would be, where a property enjoys an easement of support, but the property enjoying this easement is demolished, extinguishing the easement. Although an easement may bereservedby showing common intention, there is a heavier burden of proof for an implied reservation than for an implied grant. InDonovan & Anor v Rana & Anor[19] , the Court of Appeal held that a transferee was entitled to an easement implied by common intention over the transferor's retained land to connect to mains services in the public highway in spite of the transfer containing wording purporting to exclude the grant of additional easements This is because they are all based on the principle of non-derogation from grant whereby a person, having given something, cannot then take away the means of enjoying it. However, the principle of non-derogation from grant is essentially passive in character and a grantor does not have to take additional positive steps to perfect or improve the grant. For example, inWilliam Old International Limited v Arya[20] although the developer had an implied easement to lay service media across neighboring land, that did not oblige the owners of the neighboring land to enter into a deed of grant with a statutory undertaker as this was outside the presumed contemplation of the parties CONCLUSION The implication of easements is no substitute for express easements. Implied easements are conditional, and are vulnerable to a clear contrary intention. Moreover, an implied easement in registered land, if not on the register, is reliant on over-riding status (Sch 3 Land Registration Act 2002), and the right may, therefore, be lost if a third party purchases the servient estate. Reform Note that the Law Commission published a report “Making Land Work: Easements, Covenants and Profits a Prendre” 2011 Law Comm No 237, which has recommended widespread changes to the law of easements. Most particularly, the Law Commission recommends:

• Simplifying the law of creation of easements;
• Streamlining land registration procedures
• Empowering the Lands Chamber of the Upper Tribunal to modify or discharge land obligations.

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[1] [1956] Ch. 131 [2] [1863]2 H & C 121 [3] [1863]143 ER 332 [4] (1879) 12 Ch 31 [5] Union Lighterage Co v London Graving Dock Co (1902), Nickerson v Barraclough (1981), Wong v Beaumont (1965) [6] (1990) 61 P & CR 194 [7] [1880] 13 Ch D 798 [8] [1915] AC 634 [9] [1965] 1 QB 173 [10] (1879) 12 Ch D 31 [11] [1950] Ch.247 [12] [1930] 1 Ch 493 [13] [1981] 42 P & CR 116. [14] [1949] KB 744 [15] [1902] 2 Ch 557 [16] [2007] EWCA Civ 362. [17] [2004] 2 P & CR DG24 [18] (1993) 66 P&CR 246 [19] [2014] EWCA Civ 99 [20] [2009] EWHC 599

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