Tag Archives: The law of the land of the land of the Angles and the Saxons.

Implied grant.

Standard

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.

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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

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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

 

 

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