the law is more prepared to imply easements in favour of the grantee of land and in addition to easements of necessity and intended easements , easements may pass under the rule in wheeldon v burrows.
the rule in this case holds that where a person transfers part of his land to another person, the transfer impliedly carries with it all easement-like rights – known as quasi easements – which were enjoyed and used by the transferor before the transfer , for the benefit of the part of the land which has been transferred ,
this rule is based on the principle that a grantor may not derogate from his grant, and had the ffect of creating easements in situations that fall far outside the narrow scope of the other two categories of implied easements.
for the rule to operate three conditions mjst be fulfilled.
in the first place the easement must eb contintuous and apparent. this ambiguous expression seems to mean an easement evidenced by some makr which us discoverable on a careful inspection of the premises.
profits by tgheir nature cannot be continuous and apparent
secondly easement must be necessary to the reasonable enjoyment of the property granted even if the property is not landlocked and the grantee is therefore not entitled to a way of necessity , he may still be entitled to a claim a right of way under this rule
in determining whether the right claimed is necessary to the reasonable enjoyment of the property grnated the court will tak into accoun the inconvenience likely to be caused to the servien owner
goldberg v edwards
the easement must have been used by the common owner at the time of the grant for the benefit of the part granted. as a person cannot strictly have an easement over his own property , the word quasi easement is often used to describe the sort of right which becimes and easement under the rule in wheeldon v burrows upin the severance of a tenement
it has recently been confirmed by the court of appeal in chaffe v kingsley 2000 that the rule in wheeldon v burrows cannot create an easement by implied reservation for the retained land
in kent and another Kavanagh and another 2006 a developer owned tow properties and the path that ran between the properties
he granted identical long eases of the two properties each lease comprising half the path which adjoined the particular property but making no reference to a right pf way over the other leseess half of the path. the present lessee of one property claimed a right og way over the half of the path that romed part of the other property
the Ca held t hat the rule in wheeeldon and burrows was inapplicable but that reciprocal rights of ay would be implied to give effect to the common intention fo eh original parties.
LPA SECTION 62
if the owner of two or more plots of land conveys by deed one of the plots of land to a purchaser , then the purchaser will be granted all rights which were previously enjoyed with that land, even if those rights were previously mere licences
section 62 only applies where the land is sold by deed ir registered disposition and can only create a legal easement although essentially a word saving provision , this section may – subject to any contrary intention – operate to convert consensual privileges into easements.
it is very unlikely that parliament intends it to have any such effect
but section 62 had become an important way in which easements can be created , particularly as it is not subject to the same limitations as the rule in wheeldon v burrows
note the following points
1………………… there must be a conveyance. this des not include an agreemnt for a lease and in such a case the rule in wheeldon v burrows may still be important.
goldberg v edwards – borman v griffith ; wright v macadam
2………………………. there must be diversity of occupation of the two tenements at the time of the conveyance . the conveyance will be made in favour of someone who is in occupation of the dominant tenement, mosty commonly by virtue of a lease. the case of platt v crouch throws doubt upon this requirement
3…………………….. the right or privileged should ;;appertain or be reputed to appertain” to the land – i e be attached to the land or believed to do so =- or enjoyed with the land at tge time of the conveyance. uf the privileged has already been revoked , no easement can arse through the operation of section 62
4…………………… obviously section 62 cannot convert into easements rights that are in their nature incapable of being easements syc as the intermittent consensual privileged enjoyed by the plaintiffs in green v aschco horticulturist ltd
wright v macadam is a good example of the operation of section 62. the defendant leased a top storey flat to mrs wright and gave her permission to store coal in a coal shed in the garden of the building. the lease was renewed without anything further being said about the coal shed at the time renewal but later the defendant demanded a weekly rent for the use of the coal shed .
the court of appeal held that when the lease to mrs wright wss renewed the right – it was a privilege – to use the coal shed was converted by section 62 into an easement since it was a right already existing and the lease was a conveyance. note that of the second lease had been to a third party rather than to mrs wright or if the defendant had sold the flat to a third party then section 62 would have given the benefit of the easement to that third party
in the recent case of hair v gilllman andinskip 2000 the court of appeal held that permission given to the tenant of a building by the landowner to park in a forecourt was converted into an easement by LPA when the landlord conveyed the freehold of the building to the tenant. in applying wright v macadam the court of appeal stressed that the section would not have had this effect where there was no expectation that the permission could be other than temporary
p and S platt ltd v crouch 2003 where the owner of a riverside hotel also owned an island in the river which had moorings which could be sued by hotelguets. when the hotel was sold the sale di not include the mooring hu the purchasers argued that they had an easement to tuse them under section 62 peter gibsion LJ held that ince the right to use the moorings was enjoyed with the hotel and by its guests as part of its business and the rights were continuous and apparent there was an easement even though there had been no prior diversity of occupation of the dominant and servient tenancies