True/False Quiz

With the exception of the first three questions, answer the questions below based on the facts of this short scenario. A, the freehold proprietor of No. 1 Main Street sold part of his land to B in 2006. B cannot access his land by car or on foot, but can get there by boat. A used to get from B's part of the land to the Main Road by using a path that runs across the property but had not used it for a year or so. He let B use this path from time to time, although B always checked with A first. In 2008, A sold his remaining land to C.

Statute Quiz

Here you should outline the main effect, role, etc. of the provisions below. This is designed as a guide to the most important provisions, and as a means to improve your recall of the statutory provisions.

Case Law Quiz

Here you should attempt in one or two sentences to outline the main points to be taken from these cases and also three or four key words with their subject matter. This should assist in revision.

Short Answer Questions

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Podcast Script

This podcast discusses the four methods of implying easements.

The previous podcast in this series discussed the substantive requirements of the lease. This podcast discusses easements and in particular the creation of implied legal easements. For more information on the requirements of easements, see chapter 7.

An easement is an interest in another’s land which allows you to do something on another’s land, a positive easement, such as a right of way, or, which allows you to prevent the other from doing something on his land, a negative easement, such as the right to the flow of water through a defined channel. Easements are property rights. These rights can be created expressly in formalised writing through a deed and in order to be legal easements they must be entered as the subject of a notice. But they can also be created impliedly. Implied legal easements (i.e. those implied into a deed) will be an overriding interest under Schedule 3, Para 3, Land Registration Act 2002.

There are four methods of implying easements
(1) Easements of necessity
(2) Common intention
(3) Rule in Wheeldon v Burrows
(4) Operation of Section 62 LPA 1925

In this podcast we will go through each of these methods and explain in outline how they work.

(1) Easements of necessity

An easement of necessity will be implied into a transfer where one part of the land would otherwise be completely inaccessible. For example, A transfers title to half of his land to B. A cannot now reach his land. A right of way will be implied in A’s favour over B’s plot. Similarly, if B’s land would have been left inaccessible an easement would be implied over A’s land. This method therefore applies both to implied grants and reservations. The land must however be completely inaccessible. Even access by river only will prevent the implication of an easement of necessity, as can be seen in Manjang v Drammeh.

(2) Common intention

Similarly, easements can be impliedly reserved or granted if this gives effect to a common intention as to the way in which land was going to be used. For example, in Wong v Beaumont Properties the parties intended on transfer that the basement would be used as a restaurant. This requires adequate ventilation. Since this could only be achieved by passing air through the reserved property, an easement was implied. In order that the easement be implied in this way, a clear and certain common intention must be identifiable, not just a vague plan.

The remaining two methods, the rule is Wheeldon v Burrows and the rule in section 62 Law of Property Act 1925 are more contentious. They can also only be used to impliedly grant easements.

(3) The rule in Wheeldon v Burrows

An easement will be implied if, before the transfer, the previous owner used the land in such a way as to amount to a quasi-easement. For example, he might cross his own land to get to the road. This is a quasi-easement. If this easement is necessary to the reasonable enjoyment of the land and was also continuous and apparent before the transfer, then it will be granted as an implied easement.

(4) Section 62 Law of Property Act 1925

The final method of implied grant of an easement is through the operation of section 62 LPA 1925. The rule means that if prior to the grant of the title of part of the land to B, that land was occupied by B and B was permitted to use the land in the way that was akin to an easement, then on the transfer of the title to the land, the permission will ‘elevate’ into an easement.

This is certainly the orthodox explanation of how Section 62 works but in Platt v Crouch it was suggested that prior diversity of occupation was not required. If this is the case, and the comments were not obiter in Platt v Crouch, then the interaction between Wheeldon v Burrows and section 62 becomes difficult and will often be the subject of a problem question.

In the next podcast we will look at restrictive covenants and in particular the effect of Section 78 & 79 Law of Property Act 1925. Today’s key concept- implied easements.