EXPRESS AND IMPLIED EASEMENTS
EXPRESS EASEMENTS
⇒ The most straightforward in which X can acquire an easement over land owned by Y is by Y
expressly conferring the easement on X.
⇒ Express conferral can occur in an ad hoc transaction e.g. Tim (owner of the freehold estate in
Blackacre) grants Emily (owner of the freehold estate in Blueacre) a right of way over Blackacre.
⇒ Express conferral also occurs on the transfer of land e.g. Tim sells part of Blackacre to you and
either:
Grants (grant of an easement) an easement benefitting the land transferred to you and burdening
the land retained by her, OR;
Reserves (reservation of an easement) an easement benefiting the land retained by her and
burdening the land transferred to you.
⇒ Legal or equitable:
An easement is a right in rem which is capable of being legal (Law of Property Act 1925, section
1(1)).
An express easement will actually achieve legal status if created with the requisite formality i.e. a
deed (Law of Property Act 1925, section 52(1)) and registration (Land Registration Act, section
27(2)(d)).
Where the relevant formality requirements are not satisfied, the easement may take effect in
equity. It will do so if there is a valid (actual or discovered via Parker v Taswell (1858)) contract
granting the easement (Law of Property (Miscellaneous Provisions) Act 1989, section 2).
IMPLIED EASEMENTS
⇒ Easements will be implied into a conveyance of land (whether that be a transfer of the freehold or
a grant of the leaseholdld) on three different doctrines:
(1) The doctrine of necessity.
(2) The doctrine in Wheeldon v Burrows.
(3) The doctrine contained in the Law of Property Act 1925, section 62.
(1) The doctrine of necessity
TRUE NECESSITY
⇒ The law impliedly grants (or reserves) an easement on a conveyance of land where the land
transferred (or retained) is landlocked i.e. there is no access to the land → The easement implied is a
right of way over the retained (or transferred) land.
⇒ An easemet won't be implied through true necessity if there is a contrary intention that the
parties do no intend there to be access to the land (Nickerson v Barraclough [1981]).
, ⇒ The easement is not implied if there is a footpath, or even access by water, to the transferred land
(MRA Engineering v Trimster (1987); Manjang v Drammeh [1990]).
COMMON INTENTION NECESSITY
⇒ The law will impliedly grant (or reserve) an easement into a conveyance of land where the parties
to the conveyance held a common intention that the transferred (or retained) land would be used
for a particular purpose, and that purpose is possible only if an easement is granted over the
retained (or transferred) land → again, the easement is excluded by contrary intent.
⇒ "The law will readily imply the grant or reservation of such easements as may be necessary to give
effect to the common intention of the parties" → "But it is essential for this purpose that the parties
should intend that the subject of the grant or the land retained by the grantor should be used in
some definite and particular manner" (Parker J in Pwllbach v Woodman (1915)).
⇒ See, for example, the case of Wong v Beaumont Property [1965].
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(2) The doctrine in Wheeldon v Burrows
SUMMARY
⇒ The case of Wheeldon v Burrows establishes that when X conveys (i.e. sells or leases) part of their
land to Y, an easement benefiting the land transferred to Y and burdening the part retained by X will
be implied into the conveyance provided that:
Before the transfer there was a quasi-easement over the retained part in favour of the transferred
part;
At the time of the transfer, this quasi-easement was 'continuous and apparent';
It is 'necessary for the reasonable enjoyment' of the transferred part that Y has an easement in the
shape of the earlier quasi-easement.
⇒ An easement will not be implied via the doctrine in Wheeldon v Burrows if, at the time of
conveyance, the parties exclude its operation
1) QUASI EASEMENT
⇒ A 'quasi-easement' is an easement-shaped practice which X engages in pre-transfer, when they
own and occupy the whole of the land.
⇒ In other words, a 'quasi-easement' is a practice which would qualify as an easement if Blackacre
were in separate ownership or occupation.
EXPRESS EASEMENTS
⇒ The most straightforward in which X can acquire an easement over land owned by Y is by Y
expressly conferring the easement on X.
⇒ Express conferral can occur in an ad hoc transaction e.g. Tim (owner of the freehold estate in
Blackacre) grants Emily (owner of the freehold estate in Blueacre) a right of way over Blackacre.
⇒ Express conferral also occurs on the transfer of land e.g. Tim sells part of Blackacre to you and
either:
Grants (grant of an easement) an easement benefitting the land transferred to you and burdening
the land retained by her, OR;
Reserves (reservation of an easement) an easement benefiting the land retained by her and
burdening the land transferred to you.
⇒ Legal or equitable:
An easement is a right in rem which is capable of being legal (Law of Property Act 1925, section
1(1)).
An express easement will actually achieve legal status if created with the requisite formality i.e. a
deed (Law of Property Act 1925, section 52(1)) and registration (Land Registration Act, section
27(2)(d)).
Where the relevant formality requirements are not satisfied, the easement may take effect in
equity. It will do so if there is a valid (actual or discovered via Parker v Taswell (1858)) contract
granting the easement (Law of Property (Miscellaneous Provisions) Act 1989, section 2).
IMPLIED EASEMENTS
⇒ Easements will be implied into a conveyance of land (whether that be a transfer of the freehold or
a grant of the leaseholdld) on three different doctrines:
(1) The doctrine of necessity.
(2) The doctrine in Wheeldon v Burrows.
(3) The doctrine contained in the Law of Property Act 1925, section 62.
(1) The doctrine of necessity
TRUE NECESSITY
⇒ The law impliedly grants (or reserves) an easement on a conveyance of land where the land
transferred (or retained) is landlocked i.e. there is no access to the land → The easement implied is a
right of way over the retained (or transferred) land.
⇒ An easemet won't be implied through true necessity if there is a contrary intention that the
parties do no intend there to be access to the land (Nickerson v Barraclough [1981]).
, ⇒ The easement is not implied if there is a footpath, or even access by water, to the transferred land
(MRA Engineering v Trimster (1987); Manjang v Drammeh [1990]).
COMMON INTENTION NECESSITY
⇒ The law will impliedly grant (or reserve) an easement into a conveyance of land where the parties
to the conveyance held a common intention that the transferred (or retained) land would be used
for a particular purpose, and that purpose is possible only if an easement is granted over the
retained (or transferred) land → again, the easement is excluded by contrary intent.
⇒ "The law will readily imply the grant or reservation of such easements as may be necessary to give
effect to the common intention of the parties" → "But it is essential for this purpose that the parties
should intend that the subject of the grant or the land retained by the grantor should be used in
some definite and particular manner" (Parker J in Pwllbach v Woodman (1915)).
⇒ See, for example, the case of Wong v Beaumont Property [1965].
Top of Form
Bottom of Form
(2) The doctrine in Wheeldon v Burrows
SUMMARY
⇒ The case of Wheeldon v Burrows establishes that when X conveys (i.e. sells or leases) part of their
land to Y, an easement benefiting the land transferred to Y and burdening the part retained by X will
be implied into the conveyance provided that:
Before the transfer there was a quasi-easement over the retained part in favour of the transferred
part;
At the time of the transfer, this quasi-easement was 'continuous and apparent';
It is 'necessary for the reasonable enjoyment' of the transferred part that Y has an easement in the
shape of the earlier quasi-easement.
⇒ An easement will not be implied via the doctrine in Wheeldon v Burrows if, at the time of
conveyance, the parties exclude its operation
1) QUASI EASEMENT
⇒ A 'quasi-easement' is an easement-shaped practice which X engages in pre-transfer, when they
own and occupy the whole of the land.
⇒ In other words, a 'quasi-easement' is a practice which would qualify as an easement if Blackacre
were in separate ownership or occupation.
