This is an extract of our Easements 2 document, which we sell as part of our GDL Land Law Notes collection written by the top tier of Cambridge/Bpp/College Of Law students.
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Land Law: Easements 2, Implied Acquisition & Prescription
?????Recap of 'Easements 1'?????First stage: is the right capable in theory of being an easement?: o To see if right is capable of being an easement o Re Ellenborough park: 4 criteria o Phipps v Pears: list of potential easements not closed, courts can add (only positive easements). o Even if passes Ellenborough Park criteria, 3 disqualifying factors that might known back an easement to being a licence: o (1) no additional compulsory expense by servient owner; (2) no permission; (3) no exclusive possession.
?????Second stage: has the easement been created or acquired properly?: o Formalities and enforcement rules for express creation of legal and equitable easements [[see 'Easements 1']]
o implied easements. Acquisition of an easement
?????By express grant or reservation (see 'Easements 1')):
?????Implied: o By implied grant (or less often reservation)---
Retrospectively included in a document. The party is saying the easement should be read into/implied into the document it was missed out.
Acquisition of an implied easement
?????IF THERE IS NO DOCUMENT TO IMPLY THE EASEMENT INTO, THERE CAN BE NO IMPLIED EASEMENT.
?????The 'missing' element can must be implied into a document: o Transfer o Lease o Contract
?????5 methods of implied acquisition: o Necessity o Common intention o Wheeldon v Burrows (1879) o S62 LPA 1925. o [[+ PRESCRIPTION]
?????All 4 methods available re grant of an easement impliedly
?????Courts more reluctant to find an implied reservation, Wheeldon v Burrows and s62 LPA do not apply to reservations
?????The first 3 methods all involve the notion of an easement being necessary to some extent: 1
o But different degree of necessity under each method---
absolute necessity in first method; specific necessity in the second method; general necessity in the third method. (1) Implied by necessity (grants and reservations)
??? ?Somebody buys a piece of land from seller who owns larger piece of land around it; but nobody notices there is no right of way in the transfer deed for the buyer to access the land.
? ?? ? Test: can the land be used at all without the implied easement? If yes, then no implied easement; if no, then it will be implied. Necessity = absolute necessity, it's not enough that it adds to the enjoyment of the dominant tenement.
??? ?The only easement that can be implied by necessity is a right of way: and only where there is no other way onto the land.
? ?? ? Manjang v Drammeh (1990): C claimed right of way; claiming there was no other road access he could use. Court refused to imply by necessity---he had alternative access, by sailing a boat across the river. This was an 'alternative access, albeit perhaps less convenient than access across terra firma'.
? ?? ? Rights to use services, eg drainage, are not 'necessary'
? ?? ? Only if C hasn't been stupid---Adealon v Merton council (2007): o Landowner already owned land adjoining a minor road; he bought additional land between the minor road and the railway line. Intention was to build a service station on the new piece of land. Railway line was going to be converted into a trunk road. He needed planning permission to build access straight after the new trunk road into the new site. He was too confident in getting the planning permission. He sold off his land near the minor road, which meant he had no alternative access to his new site. Failed planning permission. So now his land was land-locked-no planning permission for access from trunk road, and no access from minor road because he'd sold the land adjoining the minor. Court refused to imply easement by necessity---he should have reserved the right of access specifically when he sold his land, he was the author of his own misfortune. o Though interestingly, the CA said it may be possible for a right of way to be implied out of necessity, where where the landlocked dominant tenement was partly surrounded by land owned by a 3rd party who may, in theory, provide an alternative means of access.
? ?? ? Will not apply merely because seen as highly advantageous, eg easements of drainage, sewerage and electricity (Pryce v McGuinness (1966)): it must be absolutely necessary.
2 ? ?? ? If the easement is implied, it will be implied into the legal deed---so it will be an implied legal easement: the easement takes its status from the document it is implied into.
? ?? ? At one stage, was suggested that easements implied by necessity rest on some rule of public policy, in that land should not be allowed to become unusable through lack of access ? Megarry J, Nickerson v Barraclough (1980). However, reversed in CA, which said that the 'doctrine of necessity is not founded upon public policy at all but upon an implication from the circumstances'. Confirmed in Adealon International. (2) Implied by common intention of original parties (grants and reservations)
?????Requires a very specific common intention at date of grant by the parties.
?????A particular easement essential for a particular purpose ?
court must be satisfied that the easement claimed is necessary to achieve that specific purpose.
?????So specific easement for specific purpose. Where the parties know the dominant land is to be used for a particular purpose; and cannot be used for that purpose without the easement.
?????The courts decide what terms the parties would have included if they had thought about it properly.
?????Note, the test narrower for implied reservations: where the claimant needs to show there was a common intention that the specific easement was intended to exist, despite not having taken steps to ensure its express acquisition.
?????Pwllbach Colliery v Woodman (1915)---general intention as to how the property should be used is not enough, must be intention for property to be used in some definite and particular manner.
?????Wong v Beaumont Property Trust (1965) [better case to remember]
?????Original landlord let the basement premises to tenant to be used as a restaurant (there was a covenant in the lease saying it would only be used as a restaurant---so a specific use). There was also a covenant re controlling smells from restaurant, and environment regulations.
?????Landlord sold freehold to Beaumont; and tenant sold remainder of lease to Wong.
?????Wong used the property as a Chinese restaurant; the upstairs tenants complained about the food smells. Public health inspector inspected, required a ventilation system to be used on the landlord's adjoining properly. Landlord refused permission to Wong to use ventilation system on landlord's adjoining land.
3 ?????Court granted an easement implied by common intention: (1) parties intended particular use of restaurant; and (2) the premises couldn't be used as a restaurant without the ventilation system.
?????It was a legal lease ? so an implied legal easement.
?????Stafford v Lee (1992)
?????Re a right of way to otherwise landlocked land. Oddly, didn't claim easement by necessity.
?????Claimed right of way for construction traffic over adjoining land.
?????HELD: A right of way (for construction traffic and domestic use) was implied. Because the woodland was surrounded by residential properties; the transfer plan showed the neighbouring properties were there; held to be intention of the parties that the woodland would be developed as a residence; and it couldn't be without a right of way for construction traffic first and then domestic cars after.
?????Note HIGH BURDEN OF PROOF for claiming implied easement by intention.
?????Se also Kent v Kavanagh (2007)
?????Donovan v Rana (2014), CA: re an implied easement to provide services (electricity, sewage etc) where the common intention of the parties was that the land was purchased as a building plot (having been sold with outline planning permission for a single dwelling).
?????For reserved easement by common intention, heavy burden of proof to show the specific easement was mutually intended. o It may not be enough to show that the right in question had been openly exercised prior to the transaction into which it is claimed it has been impliedly acquired (Re Webb's Lease (1951)). o A common intention to reserve an easement will only be found if the facts are 'not reasonably consistent with any explanation other than that of an implied reservation' (Peckham v Ellison (2000)). o Extremely strict view, confirmed in Yeung v Patel (2014), CA---refused to extend a reservation relating to the renewal of existing gas pipes crossing the demised premises, to additionally including the laying of new pipes, on the basis that the grantor had two chances to expressly include such a reservation in either the original lease or in a subsequent deed of variation. (3) Implied under Wheeldon v Burrows (1879) (grants only)
? ?? ? On sale or lease of part of land, grantee will receive all quasieasements which are: o Continuous and apparent; AND o Necessary to the reasonable enjoyment of that land; AND
4 o Used at the time of the grant by the owner of the whole (undivided land) for the benefit of the part sold/leased.
??? ?The word 'necessary' here is used in different context from above
? necessary here doesn't really mean 'necessary', it means it 'enhances' the reasonable enjoyment of the land.
? ?? ? Wheeldon v Burrows applies to implied easements where originally there was one owner of the whole property---then that person sells/lets part of that land; the part sold gets the benefit of all the potential rights which the owned enjoyed when the land was in one occupation; these were quasieasements.
??? ?So it's a way of converting quasi-easements into full easements when part of land is sold/leased.
??? ?If you can show that when the owner owned the whole thing, they exercised a quasi-easement; then the buyer can claim the easement under Wheeldon v Burrows, subject to the conditions.
? ?? ? Only applies to grants: the seller/landlord will not be able to sell/lease the land and then go and claim it back again. Seller/landlord must expressly reserve rights; cannot claim an implied easement by reservation under Wheeldon.
? ?? ? Can only apply where immediately prior to sale/lease, there was a common owner and occupier of the whole (Kent v Kavanagh)
? ?? ? Can also apply where owner of a large plot splits the land and sells both plots contemporaneously: the new owners of each plot will acquire as easements any quasi-easements which, prior to the sale, been exercised for the benefit of the land they have now purchased (Swansborough v Coventry (1832)).
? ?? ? (1) You first need to establish a quasi-easement: that at time the land was sold the owner was exercising quasi-easements over their own land.
? ?? ? (2) Continuing & apparent: o Continuous = used on a regular basis (doesn't have to be incessantly continuous); must not be intermittent or transitory. o apparent = some sort of visible evidence, discoverable from careful inspection (Pyer v Carter) (eg a worn track for right of way, a manhole cover for drainage). o The rule has been described as one of common sense, honesty and decency (Sovmots Investments v SoS Environment (1979)).
? ?? ? (3) necessary to the reasonable enjoyment of the land o 'Necessary' here is not as strict as easements implied by necessity or by common intention. o Do both requirements above need to be met (necessary to reasonable enjoyment; and continuous and apparent)? In
5 Ward v Kirkland (167), suggested that the two requirements were alternatives, and that one would suffice. o But predominant view, both requirements need to be satisfied, eg Millman v Ellis o Wheeler v JJ Saunders (1995), CA o C bought a farmhouse; D bought an adjacent pig farm---both from a common vendor. o C covenanted to erect and maintain a fence along the boundary; one of the two means of access to the farmhouse was across D's land, this access had been used when the property was in common ownership. o D blocked the access. HELD; C was not entitled to an easement under Wheeldon v Burrows. o HELD: that the access was not 'necessary', although there was evidence that the access was used before the sale, and the use was continuous & apparent. o CF Wheeler with Millman v Ellis (1996), CA o In both cases, original owner had sold off part of their property; each buyer claimed right of way across land retained by the seller (even though there was an alternative access, so couldn't claim it by necessity). o In both cases, the sellers had used the route when they owned the whole thing (they exercised quasi-easement over the route). o In both cases, the right was continuous and apparent. o In Wheeler: the alternative route available was just as convenient as the right of way claimed under Wheeldon v Burrows. So the easement was not granted. o CF in Millman, the alternative route was much less convenient than the one claimed. So the easement was granted.
? ?? ? (4) In use at date of transfer--Right must have been in use by the sole owner at the time that the land was originally partitioned o Doesn't mean that it must have been in use at the exact time of sale/lease. Rather, must have been exercised in the recent past, and expected to be exercised against in the near future. o Kent v Kavanagh, CA: it must have been in use by the common owner (i.e. the person now selling/leasing the land). Would not be sufficient if the right had been previously used, eg, by their tenant.
? ?? ? Applied to conveyances and contracts---Note, the implied acquisition under Wheeldon can operate not only on actual sale of a freehold/lease, but also upon an agreement to do either, i.e. a contract (Borman v Griffith): unlike S62 LPA below.
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