Implied Easements

Implied Easements

The acquisition of land often involves intricate legal considerations, one of which is the potential for implied easements to arise without explicit mention in the conveyance or transfer documents. Beyond easements of necessity, various principles allow a purchaser of land to acquire implied easements, safeguarding their reasonable enjoyment and reflecting common intentions. This article critically evaluates three key mechanisms: common intention easements, Wheeldon v Burrows, and Section 62 of the Law of Property Act (LPA) 1925.

Common Intention Easements
Common intention easements aim to give effect to the shared understanding and purpose of the grantor and grantee regarding the use of the transferred land. The law emphasises the objectively ascertained purposes of the transfer, and a necessary easement for common intention can be implied even if not explicitly expressed. The threshold for essentialness is lower than that for easements of necessity, allowing for flexibility to facilitate the contemplated use. However, an overly relaxed approach may lead to unjust outcomes, emphasising the need for a careful consideration of the grantor's intention.

Wheeldon v Burrows for Reasonable Enjoyment
Under the Wheeldon v Burrows doctrine, an easement can be implied to give effect to the reasonable expectations of the grantee, based on demonstrated facts. This principle applies when a quasi-easement is previously enjoyed by a common owner of conjoined parcels of land, with specific criteria to be met. The threshold for essentialness is even lower than common intention easements, focusing on the continuous and apparent use of quasi-easements. This approach protects the grantee's reasonable expectation but must be applied judiciously to avoid frustration of the grantor's actual intention.

Section 62 LPA 1925 for Enjoyment
Section 62 of the LPA 1925 allows the implied grant of easements if rights capable of being easements are enjoyed with the dominant land at the time of conveyance. This provision, while controversial, provides a wide interpretation of rights enjoyed, potentially transforming quasi-easements into easements. The expansive interpretation raises concerns about displacing the parties' intentions, but vendors can exclude Section 62 by expressing contrary intentions in the conveyance.

Implied grants of easements serve essential roles in protecting the rights of land purchasers and promoting social and economic development. While common intention easements and Wheeldon v Burrows find justification in policy considerations and the doctrine of non-derogation from grant, Section 62 LPA 1925 remains controversial. The balance between grantors' and grantees' rights is delicate, requiring a nuanced approach to avoid unjust outcomes. Vendors can protect their rights by expressing contrary intentions in conveyance documents, ensuring a transparent and informed decision-making process in land transactions.
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