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

if the parties cannot exclude the implication of easements, a transaction would
not proceed. So we do not make any recommendation to change the current
position, that implication can be expressly excluded.
3.50 Our recommendation involves no mention of, and no change to, the doctrine of
non-derogation from grant. It remains a useful and important doctrine; it can be
seen as a historical foundation for the law of implication, 47 and has wider effect
within the general law.
3.51 We conclude our discussion of implication by noting that our proposals would not
impact upon ancillary easements. These are the rights that are necessary in
order to exercise an easement itself – for example a right of access to a pipe to
repair it, ancillary to an easement to use the pipe. 48 We do not believe that it is
possible expressly to exclude these under the current law, as they arise from the
construction of the grant, 49 and our recommendations would not change that.
Ancillary easements do not survive the extinguishment of their parent easement
and are best analysed as a matter of interpreting the scope of the parent
easement itself.
(3) SECTION 62 OF THE LAW OF PROPERTY ACT 1925
The current law
3.52 Section 62 of the Law of Property Act 1925 is a word-saving provision, derived
from section 6 of the Conveyancing Act 1881. The provision was intended to
avoid any question as to whether a particular easement or right would or would
not pass with a conveyance. 50 However, it can also create new easements and
profits. 51
3.53 This curious effect is best understood by starting from the opening words of the
section:
47 We mooted in the Consultation Paper explicit reform of the doctrine to ensure that it could
not by itself give rise to implied easements: Consultation Paper, para 4.106. The form of
our recommendation at para 3.45 above means that a separate recommendation to this
effect is unnecessary; and see the Analysis of Responses, paras 4.54 to 4.61.
48 Pomfret v Ricroft (1669) 1 Wms Saund 321, 85 ER 454; Liford’s Case 11 Co Rep 46b,
52a; 77 ER 1206, 1218, Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, 646.
49 As they arise from the construction of the grant, the mechanism by which ancillary
easements are “excluded” is by tighter drafting of an easement to preclude the potential for
ancillary rights to emerge (for example, a right of way with, expressly, no right to park). See
E Slessenger, “Car Parking Rules OK” [2008] Conveyancer and Property Lawyer 188 and
K Reid, “Accessory Rights in Servitudes” [2008] Edinburgh Law Review 455.
50 J T Farrand, Wolstenholme and Cherry’s Conveyancing Statutes: Volume 1 Law of
Property Part I (13th ed 1972) p 139. See also Gale on Easements, para 3-126 and
Megarry and Wade, para 28-019.
51 See N Hopkins, The Informal Acquisition of Rights in Land (2000) pp 213 to 214. For a
recent discussion see Campbell v Banks [2011] EWCA Civ 61, [2011] NPC 13.
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