Your land is subject to an easement allowing pipes and cables for utilities to run across your land. However, the electricity company will only run a supply if you agree to enter into a deed of grant with it. Are you obliged to do so?

The person with the benefit of the easement would, no doubt, argue that you are obliged to enter into the deed of release with the electricity company, because (i) it is an ancillary obligation under the easement, being necessary for the enjoyment of the express right granted, and (ii) failure to do so would be non-derogation from grant. But, both those arguments will fail. As far as ‘ancillary rights’ are concerned, the key point is that an easement cannot impose an implied positive obligation (that is something for which an express covenant is required), and thus the court would not imply a covenant to execute a deed in favour of a third party. Likewise, ‘non-derogation’ is also negative in character in the sense that it cannot be used to compel a landowner to enter into a contract with a third party.

The end result, therefore, is that a landowner will not be obliged to enter into a deed with a utility company unless the wording of the easement specifically requires him to do so. However, it should be noted that there is no legal obligation on an utility company to require a landowner to execute such a deed of release; thus, the conveyancer who drafted the original easement could be forgiven for not appreciating that such a requirement might arise in the future. But, the lesson is clear: when negotiating easements, consideration should be given to the possibility that a utility company may require an additional consent and try to impose an obligation within the easement for the landowner to enter into such consent as may be reasonably required. Even then, however, it should be remembered that positive obligations will not usually bind successors in title, and thus it is best to obtain a covenant that similar contractual commitments will be obtained from all subsequent owners (so there is direct privity of contract).

There is, of course, a statutory procedure that will overcome this problem, in that a landowner can request the utility company to ask the Secretary of State to grant a wayleave. That, however, is a relatively expensive and time-consuming process that is best avoided. See article on William Old v Arya [2009] EWHC 599 (Ch) (access free at www.practicalconveyancing.co.uk) in [2009] 239 PLJ 9.