|
Background:
An easement is a right enjoyed over one piece of land (the servient tenement) for the benefit of another piece of land (the dominant tenement) e.g. rights of way and rights to light. One of the requirements for an easement is that the servient tenement (which is subject to the easement) and the dominant tenement (which benefits from the easement) must not be owned and occupied by the same person.
Therefore, if a person owns two pieces of land and walks across one piece to access the other, he is not exercising an easement. What may exist is a "quasi easement", i.e. something that could become an easement if the two pieces of land came into separate hands.
Bakewell (above) considered easements arising by prescription. An easement may also be acquired by implied grant under the rule in Wheeldon v Burrows [1879] 12 ChD 31. This rule provides that, on a sale of part of a property, there will pass to the grantee as easements all quasi-easements that are continuous and apparent or in other words necessary to the reasonable enjoyment of the part sold and have in fact been enjoyed by the owner of the property for the benefit of the part sold.
The rule only operates to the extent it is not inconsistent with the intention of the parties.
The case of Wilson v McCullagh [2004] All ER(D) 324 (Mar) addressed a number of issues relating to rights of way, including the elevation of a quasieasement into an easement on a sale of part.
Facts:
The claimants and the defendants were neighbours and their properties shared a common access track, part of which was owned by the claimants and part of which was owned by the defendant. The properties had once been owned and occupied by the same person but in the 1990s were conveyed to two separate owners.
By these conveyances, the claimants’ property was sold subject to all "existing…easements and quasi easements" and the defendants’ property was sold with the benefit of "all existing…easements and all quasi-easements".
The defendants owned a path off the main track which gave them access to their property. However, this path was not suitable for large vehicles and historically (since before the separation of ownership), access to the property with large vehicles had been over part of the main track owned by the claimants. The claimants refused a right of way for the defendants over this part of the track.
In addition, the defendants (and their predecessors) installed gates across the part of the track owned by them and removed a fence, allowing livestock onto the track and making it extremely muddy. The claimants alleged that these actions interfered with their rights of access.
There were a number of other disputes between the parties which are not considered in this report.
Decision:
The right to use part of the main track to access the defendants’ property was, at the time of the separation of ownership, a quasi-easement and as such passed pursuant to the express grant of quasieasements in the conveyance of the defendants’ property. Since an easement had been acquired by express grant, there was no need to consider whether an easement had been acquired by implied grant.
In relation to the alleged interference with the claimants’ rights of way, the judge said that the presence of two gates would not in itself be a substantial interference with the claimants’ rights. However the removal of the other fence which caused livestock to congregate near the gates and made the opening and closing of the gates difficult was an unreasonable interference with their rights.
Comment:
In this case, there was an express grant of all "quasi easements" so it was not necessary to consider whether there had been an implied grant under the rule in Wheeldon v Burrows. In coming to the conclusion that the right of way over the main track to the defendants’ property was, at the time of the separation of ownership, a quasi-easement, the judge appears to have considered it necessary for the right to have been continuous and apparent and necessary for the reasonable enjoyment of the defendants’ property and actually used for access at the time of the separation of ownership. In other words, the test for an implied grant under the rule in Wheeldon v Burrows had to be satisfied for the right to qualify as a "quasi-easement".
However, a quasi-easement is commonly defined as a right exercised by the owner and occupier of two tenements over one tenement which would constitute an easement if the two tenements were in different ownership. This suggests that for a right to be a quasieasement, only the requirements for an easement must be satisfied rather than the requirements for an implied grant under the rule in Wheeldon v Burrows.
In relation to the rule in Wheeldon v Burrows, there have been some doubts as to whether the requirement that the easement should be continuous and apparent is an alternative to the requirement that the easement be necessary for the reasonable enjoyment of the property. In Wheeler v J J Saunders Ltd [1996] Ch 19, Gibson LJ thought it "tolerably clear" that the judge was treating the first requirement as synonymous with the second.
In addition to acquisition by implied grant pursuant to the rule in Wheeldon v Burrows, an easement can also be acquired by virtue of section 62 of the Law of Property Act 1926 ("section 62"). Section 62 provides that "a conveyance of land shall be deemed to include and shall…operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches…liberties, privileges, easements, rights and advantages whatsoever appertaining…to the land…or, at the time of the conveyance…enjoyed with…the land." Section 62 only applies as long as a contrary intention is not expressed in the conveyance.
On a sale of part, difficulties can arise if the potential effects of the rule in Wheeldon v Burrows and section 62 are not considered by both the buyer and the seller at the outset of the transaction. The buyer may acquire rights over the seller’s retained land that the seller does not expect or the rights acquired by the buyer in reliance on Wheeldon v Burrows and/or section 62 may not be all that he expects.
It is therefore advisable when acting for a seller to exclude the operation of Wheeldon v Burrows and section 62 and, when acting for a buyer, to include as an express grant all the rights that the buyer expects to have over land retained by the seller. In addition, sellers need to consider carefully reserving rights to benefit the land they retain, because neither Wheeldon v Burrows nor section 62 operates to reserve rights in favour of the retained land over the land being sold.
|
