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

implied grant or reservation of easements, and so can benefit either party to a
disposition, Wheeldon v Burrows assists only those acquiring an estate in land.
More generally, we can say that the law is readier to imply a grant than a
reservation.
3.29 The Consultation Paper suggested that, in determining whether an easement
should be implied, it should not be material whether the easement would take
effect by grant or by reservation. 33 The vast majority of consultees were in favour
of this change. 34 Implication serves a useful purpose where there has been
inadvertence or mistake, and such things befall disponors as much as disponees.
3.30 We recommend that in determining whether an easement should be
implied, it should not be material whether the easement would take effect
by grant or by reservation.
The options for reform
3.31 The obvious problem with the rules of implication is their complexity: as we have
said, there are at least three methods, 35 which operate differently but may overlap
(claims are commonly litigated under different heads in the alternative).
3.32 We take the view that a single statutory test for implication is required, to replace
the existing group of methods. The Consultation Paper set out alternative tests,
derived from the current law, which could be employed to determine whether an
easement is to be implied. It offered consultees the option of an approach based
upon ascertaining the actual intentions of the parties; or an approach based upon
a set of presumptions which would apply in each transaction. The idea behind the
latter option was that it would be presumed that the parties intended certain
easements, which would then take effect unless either party could show that
intention was absent; for example, it could be presumed that the parties intended
that the land should be accessible, and should have services and other rights
needed for its intended use. A third option offered to consultees was a single rule
based on what is necessary for the reasonable use of the land – by which, we
explained, we meant a more generous test than the current law of easements of
necessity. 36 Finally, we discussed a test based upon the contractual rules of
implication.
3.33 While there was almost unanimous consensus among consultees that reform
was appropriate, there was a divergence of opinion as to how best to achieve
this. 37 Some wanted the potential for implication to be reduced while others were
unsure that that would help. One consultee said that “the reduction of the bases
33 Consultation Paper, para 4.53. We also suggested, in para 4.53, that “in either case, the
person alleging that there is an easement should be required to establish it”; that is clearly
the case – he or she who alleges must prove – and we do not discuss it further.
34 See the Analysis of Responses, paras 4.33 to 4.41.
35 Identified at paras 3.11 to 3.24 above; it is unclear whether the principle of non-derogation
from grant can by itself effect the implication of an easement. For a recent consideration of
the doctrine see William Old International Ltd v Arya [2009] EWHC 599 (Ch), [2009] 2 P &
CR 20.
36 Consultation Paper, paras 4.140 and 4.141.
37 See the Analysis of Responses, paras 4.62 to 4.94.
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