Implied Easements

How can an easement be implied by law?

Necessity, doctrine in Wheeldon v Burrows, and s.62 Law of Property Act 1925

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Necessity - two methods?

True Necessity and Common Intention Necessity

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True Necessity

Where land is landlocked, unless expressly excluded in the conveyance: Nickerson v Barraclough

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Common Intention Necessity

Where it is the common intention of the parties that land will be used for a 'particular purpose' and it is not possible without the grant of an easement: Pwllbach Collieries v Woodman

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Example of Common Intention Necessity

The use of the cellar was not possible without the installation of a ventilation system on the servient owner's land: Wong v Beaumont Properties

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Similarities between Wheeldon v Burrows and s.62 Law of Property Act 1925

Can only be used to impliedly grant, not reserve an easement

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Differences between Wheeldon v Burrows and s.62 Law of Property Act 1925

Wheeldon can only be used where there is prior unity of occupation concerning land, whereas s.62 applies only where there is prior diversity of occupation

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Wheeldon v Burrows

Was previously a 'quasi-easement' over the retained land in favour of the transferred land, it was 'continuous and apparent', and was necessary for the reasonable enjoyment of the land

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'Continuous and Apparent'

After Borman v Griffith, the requirement is instead just for 'apparentness', which this cases states means 'visible'

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Necessary for the reasonable enjoyment of the land?

It was not in Wheeler v JJ Saunders or Goldberg v Edwards - showing this requirement very hard to satisfy

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s.62 Law of Property Act 1925

Must be a previous 'easement-shaped advantage' over the retained land in favour of the the transferred land, where this is so the easement will adopt the formality of the conveyance (i.e. deed) and become a full easement

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s.62 Law of Property Act 1925 in cases with prior unity of possession

Wood v Waddington [2015] states that s.62 can apply in cases of prior unity of occupation as well provided the easement was also 'continuous and apparent' going against prior HL authority in Sovmots v Secretary of State, and CA in Kent v Kavannagh

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Implied Easements

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