Making Land Work: Easements, Covenants and ... - Law Commission

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implied. 14 3.14 The necessity must exist at the time of the disposition, subject to an exception where, at the time of the grant, the owner of the servient land knew that a necessity would arise at a later date. 15 It is unclear what happens where the facts that gave rise to the necessity cease. There is some authority which suggests that, in such circumstances, the easement of necessity should also cease; 16 against this is considerable authority to the effect that where a grant of an easement is implied, it should not be “affected by the chance subsequent acquisition of other property”. 17 Easements of intended use 18 3.15 Easements of intended use arise where they are necessary to give effect to the manner in which the land retained or demised was intended by both parties to be used. As explained by Lord Parker in Pwllbach Colliery Co Ltd v Woodman: 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 to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. 19 3.16 Both parties must, at the time of the grant, have shared an intention, either express or implied, that the land demised or retained would be used for a particular purpose. 20 A well-known example concerned a cellar let to a tenant for use as a restaurant subject to a covenant to control and eliminate all smells and odours caused by such use. On that basis, there was implied an easement allowing the tenant to fix a ventilation shaft to the wall of the upper floors, in the landlord’s ownership, because without that he could not have used the kitchens. 21 3.17 In deciding whether or not to find an easement implied by common intention, the court will have regard to “the terms of the conveyance, the position on the ground, and the communications passing between the parties before the execution of the conveyance”. 22 However, as explained in the Consultation 14 Titchmarsh v Royston Water Co Ltd (1899) 81 LT 673. 15 St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) [1975] 1 WLR 468. 16 Holmes v Goring (1824) 2 Bing 76, 130 ER 233; Donaldson v Smith [2006] All ER (D) 293. 17 Maude v Thornton [1929] IR 454, 458, by Meredith J. Also see Proctor v Hodgson (1855) 10 Exch 824, 156 ER 674; Barkshire v Grubb (1880-81) LR 18 Ch D 616; Huckvale v Aegean Hotels Ltd (1989) 58 P & CR 163, 168 to 169, by Nourse LJ. 18 See Gale on Easements, paras 3-26 to 3-31 and Megarry and Wade, paras 28-011 and 28-013. 19 [1915] AC 634, 646. 20 Although, as stated in Megarry and Wade, para 28-012, “easements are implied much more readily in favour of a grantee, on the principle that a grant must be construed in the amplest rather than in the narrowest way”. 21 Wong v Beaumont Property Trust Ltd [1965] 1 QB 173. 22 Adam v Shrewsbury [2005] EWCA Civ 1006, [2006] 1 P & CR 27 at [28], by Neuberger LJ. 30
Paper, 23 this does not sit easily with the principle of interpretation set out by Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society, 24 where previous negotiations and declarations of subjective intent were described as being inadmissible in claims other than for rectification. 3.18 The principle can found both the grant and the reservation of an easement; like the rule in Wheeldon v Burrows the doctrine has its roots in the principle of nonderogation from grant. 25 The rule in Wheeldon v Burrows 26 3.19 On a disposition of part of a property, quasi-easements used by the seller may be transformed into easements in favour of the buyer. A quasi-easement is when a landowner uses one part of his or her land for the convenience or other advantage of another part, provided that that use could have been an easement if the two areas were in different ownership. 3.20 The diagram below shows a typical Wheeldon v Burrows-type situation, where X formerly owned both fields, and accessed the highway from a house on field 1 by walking along the path over field 2. This is known as a quasi-easement: it would be an easement if the two fields were in separate ownership and the right had been granted expressly or acquired by implication or prescription. When field 1 is sold, an easement will be implied into the disposition for the benefit of field 1. 3.21 Easements may be implied by the rule in Wheeldon v Burrows in favour of the disponee if they are continuous and apparent, necessary for the reasonable enjoyment of the property granted, and used at the time of the grant by the common owner for the benefit of the part granted. The estate disposed of can be legal or equitable and the easements created will assume the same status. The transfer of the land from the common owner does not have to be for value. The parties can, by express provision or by implication, exclude the effect of the rule. 23 Consultation Paper, para 4.89. 24 [1998] 1 WLR 896. Field 1 Field 2 25 For a summary of the principle of non-derogation from grant, see Gale on Easements, para 3-52. 26 (1879) LR 12 Ch D 31; see Gale on Easements, paras 3-53 to 3-114 and Megarry and Wade, paras 28-014 to 28-018. 31
Page 1: The Law Commission (LAW COM No 327)
Page 4 and 5: MAKING LAND WORK: EASEMENTS, COVENA
Page 6 and 7: vi Paragraph Page (7) The terminati
Page 8 and 9: viii Paragraph Page Remedies for br
Page 10 and 11: covenant not to build upon it, for
Page 12 and 13: This is an important area with sign
Page 14 and 15: 7 we recommend that that jurisdicti
Page 16 and 17: HUMAN RIGHTS 1.32 In a project conc
Page 18 and 19: of this Report; they do not general
Page 20 and 21: (b) A rentcharge in possession issu
Page 22 and 23: Many further examples could be give
Page 24 and 25: 2.25 Second, the easement must acco
Page 26 and 27: 2.34 The profits with which we are
Page 28 and 29: 2.42 A restrictive covenant is not
Page 30 and 31: 2.53 In the Consultation Paper we m
Page 32 and 33: 2.62 Rights that do not qualify for
Page 34 and 35: CONCLUSION 2.72 In this Part we hav
Page 36 and 37: more. 3.6 Consultees were keen to r
Page 40 and 41: Further bases for implication 3.22
Page 42 and 43: to a single general principle … i
Page 44 and 45: any test for implication must be ap
Page 46 and 47: (1) A conveyance of land shall be d
Page 48 and 49: intention of the “grantor”. Bec
Page 50 and 51: from the case law; a claimant may c
Page 52 and 53: 3.82 We have heard calls throughout
Page 54 and 55: landowner’s objections or protest
Page 56 and 57: y lost modern grant. The introducti
Page 58 and 59: 3.108 Under the 1832 Act a tenant c
Page 60 and 61: period, and imposes exactly the sam
Page 62 and 63: criminal. 132 3.130 Note that the s
Page 64 and 65: egistration principles. 140 3.139 N
Page 66 and 67: elaxation of the restriction. We we
Page 68 and 69: to make the acquisition of a right
Page 70 and 71: simple owner. 171 When land is let,
Page 72 and 73: than requiring people to do battle
Page 74 and 75: And that was the difficulty with th
Page 76 and 77: 3.200 Clearly if such arrangements
Page 78 and 79: that the servient owner can access
Page 80 and 81: Abandonment is not, we think, to be
Page 82 and 83: 3.230 We recommend that where an ea
Page 84 and 85: 3.239 However, the Court of Appeal
Page 86 and 87: We agree that where an easement is
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3.253 Yet we hear the practical con
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and so our clause enables an electi
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4.6 Schedules 4 and 8 to the Land R
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ecause of the antiquity of those in
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will reach Land Registry - and the
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into one title, the easement is lik
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4.50 That reform is to apply to int
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easement being created. Short-form
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PROBLEMS IN THE LAW RELATING TO COV
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e registered and there would then b
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obligations rather than positive co
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support. 39 5.27 None of these meth
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in this context. The Restatement dr
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5.43 A very few consultees explicit
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5.51 The policy of the American Res
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out by an unexpected burden. The co
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5.66 That latter point in particula
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status as an interest in land, and
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terms used at present to create a c
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servient owner has responded to req
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PART 6 A NEW LEGAL INTEREST IN LAND
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(2) The only interests or charges i
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6.21 Obligations that do not touch
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Ancillary rights 6.33 Clause 1(6) o
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his successors in title will [mend
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for a plan to be used in creating a
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6.57 We recommend that where title
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6.68 Legal easements, by contrast,
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Unity of seisin 6.79 We take the vi
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THE ENFORCEABILITY OF LAND OBLIGATI
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6.99 We recommend that where more t
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6.110 This is close to one of the o
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(1) where the proprietor of one par
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- it would be in the parties’ int
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6.139 But what of the squatter befo
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this view. In keeping with the cont
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way linked, on breach, to the value
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6.174 However, we need to recommend
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the land, the burdens will attach t
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Land: Report on Restrictive Covenan
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we make no recommendations that wil
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the conclusion that the Lands Chamb
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7.32 Consultees supported that chan
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7.42 It is important for the provis
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positive obligations and apportionm
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7.63 We made two provisional propos
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7.74 However, in some instances the
Page 182 and 183:
7.86 In the Consultation Paper we m
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8.7 We recommend that: (1) an easem
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8.21 We recommend that provided tha
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8.34 We recommend that Land Registr
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8.48 We recommend that the limitati
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applicant does not object; equally,
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1 Power to impose obligations 2 Con
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Law of Property Bill iii 42 Saving
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2 190 Law of Property Bill Part 1
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4 7 Enforcement of obligations 192
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6 Interpretation 194 Law of Propert
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8 Law of Property Bill Part 2 — E
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10 Law of Property Bill Part 2 —
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Page 210 and 211:
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Page 214 and 215:
18 Law of Property Bill Schedule 1
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20 Law of Property Bill Schedule 2
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22 Forestry Act 1967 (c. 10) 210 La
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24 212 Law of Property Bill Schedul
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A.7 Easements and profits are gener
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COMMENTARY ON CLAUSES PART 1 ATTACH
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Clause 2: conversion of future cove
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ecause his estate does not give him
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(3) Where the Crown has made a gran
Page 232 and 233:
without permission” (clause 17(1)
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(2) any relevant physical features
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that when any of those rights benef
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(2) what a restriction means; and (
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would be possible for D to make an
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(2) land that has been discharged f
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the dominant owner, the land obliga
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APPENDIX C SAMPLE REGISTERS 238
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240
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242
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244
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X Y Z D.9 That example is simplisti
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X A B Y C D.18 A, B, C and Y are j
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APPENDIX E SECTION 84 OF THE LAW OF
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(3A) On an application to the Upper
Page 262 and 263:
APPENDIX F LIST OF CONSULTEES Richa
Page 264 and 265:
Institute of Legal Executives Wragg
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