A critical evaluation of the principles upon which a purchaser of land will, without express mention in the conveyance or transfer, acquire easements, other than easements of necessity, over land retained by the vendor.

Apart from easement of necessity, easement that is 1)necessary for common intention, 2)necessary for reasonable enjoyment and 3)previously enjoyed over land retained by vendors can also be impliedly granted. These impliedly granted rights are necessary for protecting the transferees and the social and economic developments of this country. Nevertheless, an overly relaxed approach to implied grant of easement may, due to the frustration of the grantor’s intention, lead to severe injustice. In order to balance the rights between grantors and grantees, the courts have developed three ways to impliedly grant easements for different purposes. They are: 1)common intention easements (Pwllbach v Woodman[1915]), 2)Wheeldon v Burrows[1879]), 3)s.62 Law of Property Act (LPA) 1925. When deciding whether there is an impliedly granted easement, the relevant factors are “essentialness”, “reasonableness of the grantee’s expectation”, “grantor’s intention or contrary intention”.

Common intention easement:

Implied easement under this rule is to give effect to the common intention of use of transferred land shared by the grantor and the grantee (Pwllbach[1915]). The rule is, if an easement is “crucial for a specific purpose” of the land that both parties contemplated and intended, the easement should be impliedly granted. In these situations, the main focus of the law is to give effect to the “objectively ascertained purposes” of the transfer. The absence of an express grant of easement is merely an unintended “failure to express” (Lyttelton v Warners[1907]). The priority is given to the “necessary easement for common intention” rather than the conclusiveness of the terms on the deed. To facilitate the contemplated use, the courts require a lower threshold of “essentialness” than that of easement of necessity. Moreover, the presence of an “inconvenient alternative” does not defeat the claim (Pwllbach[1915]). Additionally, the law does not require the easement to be foreseen by any party as essential at the time of the transfer of land, as long as the common intention is known to both parties (Wong v Beaumont[1965]). This way of impliedly grant of easement is well justified for economic development, and, as commented in the Law Commission report in 2015, it achieves a satisfactory balance between the rights of grantors and grantees.

Under Wheeldon (for reasonable enjoyment):

Here, easement is implied to give effect to the “reasonable expectation” of the grantee, which is based on the empirically demonstrated facts. This rule applies when a quasi-easement is previously enjoyed by a common owner of two conjoined parcels of land, and the dominant land is subsequently transferred to another person. To trigger Wheeldon, four criteria must be met: 1)immediately prior to the conveyance, the quasi-easement is used to benefit the transferred land (dominant), 2)use of quasi-easement is “continuous and apparent”, 3)quasi-easement is necessary for “reasonable enjoyment” of the transferred land, and 4)No contrary intention expressed (Wheeldon[1879]). The first thing to note is the even lower threshold of “essentialness” than common intention easement (Borman v Griffith[1930]). This is because the basis of the implied grant is not on the utilization of resources, but on the doctrine of non-derogation from grant. The aim of Wheeldon is to protect the “reasonable expectation” of the grantee, which is, the expectation to receive the “continuous and apparent” quasi-easement previously enjoyed by the grantor (Millman v Ellis[1996]). Hence, the court requires the quasi-easement to be 1)regularly used and 2)demonstrated by some physical evidence. Since Wheeldon, at least in some occasions, inevitably frustrates the grantors’ “actual intention”. Its application must be confined to situations which “reasonable enjoyment” is established. A “mere convenience”, therefore, would not suffice (Wheeler v Saunders[1996]). Additionally, as the cornerstone of Wheeldon is “reasonable expectations”, it cannot be relied on when the transfers are “compulsory purchases” (Sovmots v SSE[1979]), or when there are expressed contrary intentions (Borman v Griffith[1930]). Nonetheless, the courts require contrary intentions to be clearly indicated to the transferees. An express grant of a lesser right is not considered to be an “implied contrary intention” to obstruct an implied easement (Millman[1996]). This aims to eliminate the transfere’s expectation, and to allow it to be considered during the negotiation process.

Under s.62 LPA 1925 (for enjoyment):

Implied grant under s.62 LPA 1925 is the result of the wide interpretation of the “word-saving” provision by the courts. The statute provides that if rights capable of being easements are “enjoyed with” the dominant land at the time of the conveyance, in the absence of contrary intention, those rights are “upgraded” to easements (International Tea v Hobbs[1903]). Unwary vendors who have granted licences to others to use land may fall into the trap of s.62. The problem is exacerbated by the courts’ broadened interpretation of “rights enjoyed”. Previously, for the purposes of s.62, “rights enjoyed” was only possible when there was a diversity of occupation of land, because a common owner of two parcels of land cannot grant himself a right to use the land he owns (Sovmots1979]). Nonetheless, in Wood v Waddington[2015], the Court of Appeal confirmed the expansive interpretation in Platt v Crouch[2003], that “rights enjoyed” is possible even without a separation of occupation. Waddington[2015] held that if the rights are “continuous and apparent”, even if they are quasi-easements, they are “rights enjoyed” and s.62 should apply. Removing the diversity in occupation requirement practically transforms s.62 to a “broadened Wheeldon” with no requirement of “essentialness”. To further free s.62 from restraints, the “continuous and apparent” requirement is also more generously interpreted. In Waddington[2015], a right used “once a month at most” is a regular demonstration of “continuous and apparent” use. The wide application of s.62 is criticised as being an unjustified displacement of the parties’ intentions. Nevertheless, vendors can simply exclude s.62 by expressing contrary intentions in the conveyance. Since most conveyances of land are done under the advice of lawyers, an absence of expressed contrary intention is most probably an informed and voluntary decision.

Conclusion

Implied grant of easements by 1)common intention and 2)Wheeldon are justified on the basis of policy reasons and the doctrine of non-derogation from grant. While s.62 is controversial, vendors’ rights are actually sufficiently secured by the simple and easy way to exclude s.62.