- Easements of necessity
Implied easements of common intention were defined in the case ofPwllbach Colliery Co Ltd v Woodman, as easements necessary to give effect to the manner in which the land sold or retained was intended to be used and they are very similar to easements implied by necessity. However, the scope and extent of an easement implied by common intention may be wider than an easement being implied by necessity. An easement of necessity is only implied to the extent it is needed to enable the land to be used. However, if it can be shown that there was a common intention of the parties, the extent of the resulting easement may be greater.Therefore, an easement of common intention can therefore arise by implied grant where, the parties have a common intention relating to the use of the dominant or servient land and an easement is necessary to carry out that shared intention. In the case of Wong v Beaumont Property Trust, a basement was leased to the plaintiff (Wong) for use as a Chinese restaurant. The lease required the tenant to use the property as a restaurant, but also to control all smells. To do that it was necessary for the Wong to install a ventilation shaft for the smells, which would have to go through the landlord's property, but the landlord refused to give such permission. Wong claimed there was an easement entitling him to put up the shaft. It was held that, there was an easement of common intention, because when the original tenant took the premises, a ventilation shaft was necessary in order for the restaurant to function properly and for smells to be eliminated. In this case, Salmon LJ explained: â€œ[I]f a lease is granted which imposes a particular use on the tenant and it is impossible to use these premises legally unless an easement is granted, the law does imply such an easement as of necessity.â€ However it should be noted as already mentioned that the scope for creation of implied easements created by common intention is wider than one of necessity. There is an overlap with easements of necessity here as in both cases necessity is a requirement. Necessity and common intention, based on the presumed intentions of the parties are. However, vulnerable to express wording in the grant demonstrating a contrary intention in Nickerson v Barraclough, the conveyance expressly precluded the grant of any rights, and the estate remained landlocked. (III) The Rule in Wheeldon v Burrows The rule in Wheeldon v Burrows, requires evidence of a "quasi-easement". A quasi-easement is the use by the owner of a single estate or parts of that estate, in a manner such that an easement would be required if the use of those parts in that manner was to continue if one part was sold. Where a part of that estate is sold, the continued user (assuming the user "crosses" both estates) will be implied as an easement where the quasi-easement was "continuous and apparent" (this might include a roadway denoting a right of way, windows denoting rights of light, or a channel denoting the right to take water) and where its continuation as a "full" easement is "reasonably necessary for the enjoyment" of the dominant tenement (the part of the estate sold). What is â€œreasonably necessaryâ€ is not necessarily a high threshold. A right claimed by way of access will not be â€œreasonably necessaryâ€ if it is simply more convenient (Goldberg v Edwards). However, in Borman v Griffith, where the estate benefited from an express right of access to the rear of the property, the courts held that a right of access to the front was reasonably necessary as it was the only way to get to the front door of the premises. The rule in Wheeldon, too, is vulnerable to evidence of a contrary intention. In Squarey v Harris-Smith , a standard term in the contract for sale excluded implied rights. The Court of Appeal, declined, on that basis, to find an implied right. (IV) S 62 LAW OF PROPERTY ACT 1925 Finally, s62 Law of Property Act 1925 will imply easements into the transfer of an estate where there is already diversity of occupation between the dominant and servient tenements (for instance on the purchase of a reversion by the tenant). It is long settled law that the operation of s62 can be expressly excluded in a transfer or conveyance. Section 62(1)provides that a conveyance of land shall be deemed to include and shall operate to convey, with the land, all ways, watercourses, liberties, privileges, easements, rights and advantages whatsoever and which (i) appertain or are reputed to appertain to the land or any part of it; or (ii) are, at the time of the conveyance, occupied or enjoyed with the land or any part of it. Furthermore, s62(4) provides that â€œThis section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.â€ The effect ofsection 62is that on a conveyance of part, quasi-easements exercised by the owner over its retained land, are granted as easements to the person acquiring that part of the land being conveyed. Case law indicates that mere permissions may be upgraded into easements. For example, where a licensee of land has used a right of way over other land belonging to the licensor with their permission, then that permission will be elevated into an easement by section 62 if a lease is subsequently granted to the licensee. For instance, in the case of Wright v Macadam, the landlord (defendant) gave his weekly tenant permission to use a shed in the garden for the storage of coal. Later, the landlord granted a new tenancy to the tenant of slightly larger premises (not including the garden). A dispute subsequently arose about the tenant's continued use of the shed. The court held that, there was a privilege (permission to store the coal) at the time that the lease was renewed and therefore s 62 was used to convert this privilege into a full easement. Therefore, in order for a privilege to be converted into an easement under s 62 it is necessary that the privilege exists at the time of the relevant conveyance (or lease). However, there is no requirement that the privilege be necessary or continuous and apparent. On the other hand, there are limits to the s 62 principle, since the right must still satisfy the characteristics of an easement under Re Ellenborough Park, mentioned above. For instance, s 62 only operates where there is a â€œconveyanceâ€, which includes legal leases, but does not oral leases or documents creating equitable leases. Secondly, the grantor must have the power to grant the easement, i.e. he must be a â€˜Competent Grantorâ€™. Section 62 cannot confer a better title on the grantee than the grantor possessed (â€œnemo dat quod non habetâ€). Furthermore, s 62 only applies to convert privileges into easements. It could not be used to convert a quasi easement into an easement because in order for s 62 to apply, prior to the conveyance there must be a diversity of occupation (ie dominant and servient land must be owned by different people. IMPLIED RESERVATION A reservation of an easement happens when the vendor sells part of their land and reserves (or keeps) an easement over the land sold. However, courts are reluctant to imply a reservation because if a vendor wishes to retain a right, he should do so expressly in a conveyance. Implying a right is a derogation from grant. Therefore the only types of implied reserved easement are, by Necessity and Common intention and since courts will not allow an easement to be implied under the rule in Wheeldon v Burrows or s 62 in the case of a reserved easement. IMPLIED RESERVATION BY NECESSITY InUnion Lighterage Co v London Graving Dock Co the claim failed, as there was no implied reservation, since (following the second limb ofWheeldon v Burrows) this would amount to a derogation from grant. This was not one of the exceptions to this rule (there was no necessity).In the case Stirling LJ, gave a description of implied reservation of an easement by necessity, stating that â€œan easement of necessityâ€¦means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that propertyâ€. Therefore, According to Stirling LJs strict approach, the only situation where this kind of easement will be implied is where the land is land locked. placed on the well-established principle that an easement of necessity can only be implied where without it the land could not be used at all, not whereit is merely necessary to the reasonable enjoyment of the property Adealon International Proprietary Limited v Merton London Borough Council The Court of Appeal has upheld the High Court's decision to reject a landowner's claim for the implied reservation of an easement of necessity. The landowner sold off land that adjoined its property on three sides, speculating that it would obtain planning permission for access to the retained land from the public highway which ran along the fourth boundary of the property. When the planning application was refused, the landowner claimed an easement of necessity over the land that had been sold off. The claim was rejected by both courts, on the basis that any rights of way required by the landowner could have been expressly reserved in the transfer when the adjoining land was sold off. The test of necessity can be a difficult one to satisfy. For example, access by water can be enough to prevent a right of way over land arising by necessity (Manjang v Drammeh (1991) 61 P&CR 194).However, in Sweet v Sommer it was held that an easement of necessity was implied even though the landowner, at the time of the implied grant, could have obtained another means of access by demolishing a building on its own land. IMPLIED RESERVATION BY COMMON INTENTION An easement by reservation may also be implied by common intention and the same case law as for easement by grant will be applied, however they depend upon the presumed agreement of the parties. So it is possible, the rules relating to implied grant may be excluded in a contract for sale or lease. Extinguishment of easements, can be done expressly or impliedly. In the former case, the dominant owner must execute a deed giving up the easement and in the latter case, an implied release it can occur by (i) abandonment or (ii) a radical Change in nature of dominant land. For an easement to be deemed â€˜abandonedâ€™, as illustrated in the case of Benn v Hardinge, the servient owner can show (i) at least 21 years non-use and (ii) an intention on the part of the dominant owner to abandon the easement. Whereas, a radical change would be, where a property enjoys an easement of support, but the property enjoying this easement is demolished, extinguishing the easement. Although an easement may bereservedby showing common intention, there is a heavier burden of proof for an implied reservation than for an implied grant. InDonovan & Anor v Rana & Anor , the Court of Appeal held that a transferee was entitled to an easement implied by common intention over the transferor's retained land to connect to mains services in the public highway in spite of the transfer containing wording purporting to exclude the grant of additional easements This is because they are all based on the principle of non-derogation from grant whereby a person, having given something, cannot then take away the means of enjoying it. However, the principle of non-derogation from grant is essentially passive in character and a grantor does not have to take additional positive steps to perfect or improve the grant. For example, inWilliam Old International Limited v Arya although the developer had an implied easement to lay service media across neighboring land, that did not oblige the owners of the neighboring land to enter into a deed of grant with a statutory undertaker as this was outside the presumed contemplation of the parties CONCLUSION The implication of easements is no substitute for express easements. Implied easements are conditional, and are vulnerable to a clear contrary intention. Moreover, an implied easement in registered land, if not on the register, is reliant on over-riding status (Sch 3 Land Registration Act 2002), and the right may, therefore, be lost if a third party purchases the servient estate. Reform Note that the Law Commission published a report â€œMaking Land Work: Easements, Covenants and Profits a Prendreâ€ 2011 Law Comm No 237, which has recommended widespread changes to the law of easements. Most particularly, the Law Commission recommends:
- Simplifying the law of creation of easements;
- Streamlining land registration procedures
- Empowering the Lands Chamber of the Upper Tribunal to modify or discharge land obligations.
  Ch. 131  2 H & C 121  143 ER 332  (1879) 12 Ch 31  Union Lighterage Co v London Graving Dock Co (1902), Nickerson v Barraclough (1981), Wong v Beaumont (1965)  (1990) 61 P & CR 194   13 Ch D 798   AC 634   1 QB 173  (1879) 12 Ch D 31   Ch.247   1 Ch 493   42 P & CR 116.   KB 744   2 Ch 557   EWCA Civ 362.   2 P & CR DG24  (1993) 66 P&CR 246   EWCA Civ 99   EWHC 599