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

intentions of the parties. The only role we see for actual intention lies in the
ordinary contractual remedies available to the parties to the disposition, in
particular rectification; we make no recommendation to change the availability of
rectification in the very limited circumstances in which it is available.
3.40 We also reject an approach based on the presumption that certain rights were
intended. We see no merit in presuming an intention that can then be rebutted –
so that what is eventually implied, or not implied, may bear no relationship to
what is actually needed to make the land viable. And while consultees did, on the
whole, prefer an approach based upon presumptions to one based upon the
parties’ actual intentions, the responses highlighted the difficulty in settling a list
of presumptions.
3.41 For example, while a presumption of access to services is likely to be seen as
sensible, should such a presumption include a reciprocal payment obligation?
Should it include a presumption that the dominant land should not overload
services? What of the presumption of the right of way? Should there be time
limits on its use, or a restriction on the number of vehicle movements? A list of
presumptions appropriate for all dispositions of part is unlikely to be sufficiently
comprehensive, certain and universally applicable, and is unlikely to stand the
test of time. So we do not wish to pursue that model; as will be seen, we think
that the test we now recommend picks up the useful elements within it.
3.42 A test of what is necessary for the reasonable use of the land attracted significant
support from consultees, and we have come to the conclusion that this is the
most appropriate principle upon which to base the implication of easements. It is
an objective test, which does not depend upon the state of mind of the parties nor
upon factual details such as whether or not a quasi-easement is visible. It is likely
to encompass all those cases where the implication of an easement is of practical
importance.
3.43 The wording “necessary for the reasonable use of the land” derives from the
American Restatement, 45 which provides some useful commentary. In order to
assist parties and the courts in determining whether that test has been passed,
we have also concluded that it would be useful for the test to be accompanied by
a non-exclusive list of factors that a court is to bear in mind in assessing what is
necessary for the reasonable use of land. In formulating that list of factors we
have had in mind the current law and the elements within it that consultees
regard as important, and also the sort of practical problems that tend to arise on
the ground. 46
3.44 One point on which a number of consultees laid some stress is the fact that
implication involves reading a term into a specific transaction, and that therefore
45 American Law Institute, Restatement (Third) of Property: Servitudes: Volume 1 (2000) p
202. The American Restatement, in §2.15, uses the words “necessary to [the] reasonable
enjoyment of the land”.
46 During consultation we were informed of a recent deal where a shop had been sold without
a drainage easement; certainly such an easement would be necessary for any use of the
land, but a test for implication should enable the owner to connect up to the existing drain,
running through the vendor’s retained land, rather than laying a fresh one. This sort of
point is reflected at paras 3.45 and 3.48 below
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