Decide whether, and explain why, the statements which follow this scenario are true
or false.
Suzie was the owner of the registered freehold title to a cottage with surrounding land. In
1999 she sold part of her land to Basil who immediately built a house on the land. From
January 2000 onwards, rather than using the lane alongside the properties to reach the local
village, Basil started to take a shortcut over Suzie’s retained land. This short cut soon
became a worn path. Before the sale Suzie, a recluse, had never walked into the village
using this route.
In January 2023 Suzie sold the cottage and remaining land to Robert who, two weeks ago,
erected a stone wall along the boundary between the two properties in an attempt to block
Basil’s path.
(a) Basil cannot claim an implied easement of necessity to cross the neighbouring land.
Implied easements may be created, without any formality, on a sale of part. They
are deemed legal easements, as they are implied into the deed used to transfer
the legal estate on the sale of part.
For a seller, an easement of strict necessity and common intention can be
impliedly reserved (held back) out of the land being sold, for the benefit of the
land the seller is retaining. A buyer on the other hand will have the right to
exercise, over the land retained by the seller easements of strict necessity,
common intention, the rule in Wheeldon v Burrows and under s 62 of the LPA.
An easement of strict necessity arises where, without it, no use can be made of
the land. “In my opinion, an easement of necessity means an easement without
which the property retained cannot be used at all, and not merely necessary to
the reasonable enjoyment of the property.” (Union Lighterage v London Graving
Dock Company)
High Threshold: A claim for an easement of necessity would, therefore, be
defeated if there was an alternative means of access, even if that alternative
access was dangerous. An easement of necessity can only be used for those
purposes for which the dominant tenement was being used at the necessity
arose, ie at the date of the grant/transfer (London Corporation v Riggs).
Strict necessity is unlikely to apply as there would be alternative methods of
drainage and sewerage (such as cess pits/soak-aways) and so the land could be
used without the easement. However, an easement of common intention may
still be found where strict necessity is not - the use of the drains and the sewers
may have been in the intention of the parties and so common intention could be
available (Wong v Beaumont Property Trust Ltd) - if a common purpose if known
to the parties, the right claimed is needed in order for the common purpose to be
fulfilled.
As the need for drains over the neighbour’s land does not satisfy the high
threshold of an easement of strict necessity, Basil will not have this claim.
(b) Basil can claim an implied easement using Wheeldon v Burrows to cross the land, as both
pieces of land were owned and occupied by Suzie at the time of the sale in 1999 and the
or false.
Suzie was the owner of the registered freehold title to a cottage with surrounding land. In
1999 she sold part of her land to Basil who immediately built a house on the land. From
January 2000 onwards, rather than using the lane alongside the properties to reach the local
village, Basil started to take a shortcut over Suzie’s retained land. This short cut soon
became a worn path. Before the sale Suzie, a recluse, had never walked into the village
using this route.
In January 2023 Suzie sold the cottage and remaining land to Robert who, two weeks ago,
erected a stone wall along the boundary between the two properties in an attempt to block
Basil’s path.
(a) Basil cannot claim an implied easement of necessity to cross the neighbouring land.
Implied easements may be created, without any formality, on a sale of part. They
are deemed legal easements, as they are implied into the deed used to transfer
the legal estate on the sale of part.
For a seller, an easement of strict necessity and common intention can be
impliedly reserved (held back) out of the land being sold, for the benefit of the
land the seller is retaining. A buyer on the other hand will have the right to
exercise, over the land retained by the seller easements of strict necessity,
common intention, the rule in Wheeldon v Burrows and under s 62 of the LPA.
An easement of strict necessity arises where, without it, no use can be made of
the land. “In my opinion, an easement of necessity means an easement without
which the property retained cannot be used at all, and not merely necessary to
the reasonable enjoyment of the property.” (Union Lighterage v London Graving
Dock Company)
High Threshold: A claim for an easement of necessity would, therefore, be
defeated if there was an alternative means of access, even if that alternative
access was dangerous. An easement of necessity can only be used for those
purposes for which the dominant tenement was being used at the necessity
arose, ie at the date of the grant/transfer (London Corporation v Riggs).
Strict necessity is unlikely to apply as there would be alternative methods of
drainage and sewerage (such as cess pits/soak-aways) and so the land could be
used without the easement. However, an easement of common intention may
still be found where strict necessity is not - the use of the drains and the sewers
may have been in the intention of the parties and so common intention could be
available (Wong v Beaumont Property Trust Ltd) - if a common purpose if known
to the parties, the right claimed is needed in order for the common purpose to be
fulfilled.
As the need for drains over the neighbour’s land does not satisfy the high
threshold of an easement of strict necessity, Basil will not have this claim.
(b) Basil can claim an implied easement using Wheeldon v Burrows to cross the land, as both
pieces of land were owned and occupied by Suzie at the time of the sale in 1999 and the
