The defendant leased a top-floor flat to Mrs Wright. While this first lease was still running Macadam gave Mrs Wright permission to store her coal in a coal-shed situated in the garden to the small block of flats. When Wright’s first lease ran out, it was renewed for a further period. At the time of renewal nothing was said about the coal shed. Later, during the running of the second lease, Macadam demanded that Wright pay one shilling and sixpence (seven-and-a-half new pence) per week for the use of the coal-shed. She refused. CA held that the privilege of using the shed was converted into an easement by s.62 because at the time the lease was conveyed the privilege existed.
Jenkins LJ: “First, the section is not confined to rights which, as a matter of law, were so annexed or appurtenant to the property conveyed at the time of the conveyance as to make them actual legally enforceable rights. Thus, on the severance of a piece of land in common ownership, the quasi easements de facto enjoyed in respect of it by one part of the land over another will pass although, of course, as a matter of law, no man can have a right appendant or appurtenant to one part of his property exercisable by him over the other part of his property. Secondly, the right, in order to pass, need not be one to which the owner or occupier for the time being of the land has had what may be described as a permanent title. A right enjoyed merely by permission is enough.” There is an exception: In the circumstances of a case where there could have been no expectation that the enjoyment of the right could be other than temporary. E.g. If I know a building is going to be put up soon then s.62/Wheeldon cannot impute an easement into the agreement for a right to light if the building is known to block it out.
Gardner: This is bad: although leases are able to deprive the owner of their own use of the property, easements cannot (Copeland v Greenhalf). Here, the granting of an easement to using the shed appears to do just that, since the owner cannot use the shed while Wright is doing so. This makes s.62 very wide, and may turn mere favours that neither party intends to be an easement into one.