Can you still have an Easement if your Deeds don’t say you have one

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Even when there is no express easement granted under a deed it may still be possible for a property to have the benefit of an easement by implication over another’s property.

If certain criteria are met that comply with the rule in Wheeldon v Burrows or the s.62 of the Law of Property Act 1925 an easement will be implied by law. The rule in Wheeldon v Burrows and s 62 of the Law of Property Act 1925 give rise to the acquisition of easements as a result of use of the grantor’s land prior to the relevant transaction.

An easement can be acquired by implication by virtue of s.62(1) of the Law of Property Act 1925. S.62(1) of the 1925 Act which states that:

“A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof”.

The effect of s62 is that it in effect converts what may have been an informal licence into legal rights in property. In the case of HAIR V GILMAN (2000) 80 P&CR 108. The Landlord allowed the Tenant to park her car on the forecourt owned by Landlord in front of the property even though there was no right to do so under the tenancy agreement. The tenant later bought the freehold of the property she had leased (excluding the forecourt) from Landlord. Nothing in the conveyance of the property mentioned any right to park on the forecourt. The Tenant was held to have acquired an implied easement to park on the forecourt retained by Landlord.

The case of Wheeldon v Burrows implies the grant of such continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of the property conveyed and have in fact been enjoyed during the unity of ownership.

The rule in Wheeldon v Burrows sets out the circumstances in which easements may be impliedly granted where the dominant and servient lands were previously owned by the same person.

However, in order for there to be an implied grant (i) The right must be “continuous and apparent” in other words be obvious on inspection and “is neither transitory nor intermittent”. (ii) The right must be necessary to the reasonable enjoyment of the property granted and is interpreted as meaning whether the right will contribute to the enjoyment of the property for the purpose for which it was transferred (iii) at the time of the grant the quasi-easement was being used by the common owner for the benefit of the part granted and the land granted and the land retained must have been in both common ownership and common occupation before the grant.

An implied easement is a legal easement. As such it is an overriding interest capable of overriding a registered disposition – Schedule 3, paragraph 3 of the Land Registration Act 2002.

This means that if the owner of the land subject to the easement had no prior knowledge of the implied easement when he/she bought the land that regardless of this fact he/she will still be bound by the implied easement.

This is a complex area of the law and each case will turn on its own facts. Should you have a query regarding an implied easement   and wish to discuss the same please contact Joseph Quinn on 01392 248858.

 

This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.

 

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