Easements 2 Notes

Land Law: Easements 2, Implied Acquisition & Prescription

• Recap of ‘Easements 1’-

• First stage: is the right capable in theory of being an easement?:

  • To see if right is capable of being an easement

  • Re Ellenborough park: 4 criteria

  • Phipps v Pears: list of potential easements not closed, courts can add (only positive easements).

  • Even if passes Ellenborough Park criteria, 3 disqualifying factors that might known back an easement to being a licence:

  • (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?:

  • Formalities and enforcement rules for express creation of legal and equitable easements [[see ‘Easements 1’]]

  • implied easements.

Acquisition of an easement

• By express grant or reservation (see ‘Easements 1’)):

• Implied:

  • 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:

  • Transfer

  • Lease

  • Contract

• 5 methods of implied acquisition:

  • Necessity

  • Common intention

  • Wheeldon v Burrows (1879)

  • S62 LPA 1925.

  • [[+ 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:

  • 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):

  • 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.

  • 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 3^rd 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.

• 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...

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