Key points

  • When selling or buying part of an existing parcel of land - or granting or taking a lease of part - great care should be taken to ensure that all necessary rights are granted and reservations made.
  • As a fall-back position, the rules on implied easements might be of assistance, but a claimant in this position is usually put through a financial wringer in order to achieve what could have been expressly stated in the first place.

Background

Once again, the issue of whether an easement has been created on a sale off of part of a larger site, with the seller retaining the unsold land, has come before the courts.

The law generally deals more favourably with a buyer to whom not all of the necessary rights were granted, than a seller who forgets to reserve an easement in favour of the retained land. As ever, the ideal is for all such matters to be dealt with expressly in the transfer documentation, but in practice this does not always happen.

As a result, the parties either have to negotiate a revised set of grants and reservations (from a position of weakness or strength, as the case may be) or have recourse to the courts to seek a declaration of what rights can be implied.

Implied easements

There are various ways in which an easement can be implied:

  • under the rule laid down in the 1879 case of Wheeldon v Burrows;
  • under section 62 of the Law of Property Act 1925;
  • by reason of necessity; or
  • because of the common intention of the parties.

One of the most cited decisions on the question of implied easements is the 1915 House of Lords judgment in Pwllbach Colliery v. Woodman. And one of the most cited sections of the judgment is the following paragraph from Lord Parker of Waddington:

"The second class of cases in which easements may be impliedly created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted, or some land retained by the grantor, is to be used ... But it is essential for this purpose that the parties should intend that the subject of the grant, or the land retained by the grantor, should be used in some definite and particular manner ...".

In other words, the court will look at the manner in which the land sold off or retained (as the case may be) was intended to be used. If the party claiming the easement can show there was common intention as to a definite and particular use, he will succeed if he can also show that the easement he claims is necessary to give effect to that user.

The facts of Donovan v Rana

In April 2004, Mrs Donovan put part of her property up for sale at auction. The sale was to be with the benefit of an outline planning permission for a single dwelling house, which Mrs Donovan had already obtained. Mrs Donovan would retain the rest of the property as her own home and gardens.

The auction particulars described the plot as being "a super individual building plot situated in a pleasant residential area in the sought after area of Chalk, where building plots are extremely rare". In May 2004, the transfer of the auction lot was completed to a Mr Haynes. The transfer included the following clauses:

  • A right of way, both pedestrian and vehicular, was expressly granted in favour of the building plot. This was over a strip of land on Mrs Donovan's retained land and was shown coloured blue on the plan annexed to the transfer: "the Blue Land".
  • That right of way was stated to be "for all purposes connected with the use and enjoyment of the [building plot] but not for any other purpose".
  • Mr Haynes was put under obligations to "erect ... the dwelling house to the satisfaction of the Local Authority" and to lay tarmac or a similar surface on the Blue Land before occupying the house.
  • There was an express exclusion of any other rights in favour of the building pot: "Save for any rights of way or access expressly referred to ... no rights of way or access for the benefit of the [building plot] over the transferor's retained land ... shall be deemed to be expressly or impliedly granted or reserved".
  • Along the same lines, the transfer stated that Mr Haynes and his successors in title "shall not be entitled to any right of access or light or air or other easements or rights which would restrict or interfere with the future use of the seller's retained land for building or any other purpose".

In September 2004, Mr Haynes obtained detailed planning permission for the new house. Unfortunately, his financial situation meant he could not proceed with the development, and, in September 2007, his mortgagees sold the plot to Mr and Mrs Rana, the defendants.

The Ranas started to build the house. By April 2009, they were ready to run drains and pipes etc from the house out into the street - just a few metres away - in order to connect to the mains services for drainage, water, gas, electricity and telecommunications. The most obvious route for this was to follow the line of the Blue Land. It made sense to lay all of these conduits before putting down the tarmac, as required by the transfer document, so their workmen began to dig. Mr and Mrs Donovan objected, and initially sought an injunction to stop the work; later on, they reduced their claim to one for damages for trespass. In September 2012, the Donovans' claim was dismissed by the County Court.

The judge held that it was the common intention of the parties to the original transfer that the building plot would be used to build a modern dwelling house which was a "standard property in a busy residential area ... [and] which complied with all local authority requirements". Such a property would have "modern facilities connected up to the street" and he therefore implied a right to connect through the Blue Land.

Further, the judge held that Mr and Mrs Donovan's argument that there was no express right of access was "putting the cart before the horse". Once a common intention to install utility connections was established, it followed that the "rights of access that have already been granted can be used for the purposes of putting in those connections".

The Donovans appealed, but the Court of Appeal dismissed this claim also, and upheld the County Court decision.

Vos LJ, giving the Court of Appeal's leading judgment, agreed that the terms of the right of way expressly granted in the transfer were sufficient to cover the laying (and retention) of utilities under the Blue Land. The clauses which sought to exclude any implied rights simply did not come into the picture.

Rimer LJ sounded a note of dissent. He felt unable to find that anything in the express grant of the right of way could be said to confer on Mr and Mrs Rana a right to dig up the Blue Land for the purpose of laying connections through it. Ultimately, however, he too felt able to dismiss the appeal on the basis that the exclusion clauses in the transfer were limited to excluding rights of way and access. They did not exclude all other potential types of implied rights, and therefore they did not oust an implied right to lay and maintain utility services.

Things to consider

It was - and remains - difficult to succeed in a claim for an easement to be implied by virtue of common intention. See, for example, our alert regarding the case of Walby v Walby. Much expense and uncertainty can be avoided by ensuring that all necessary rights are expressly addressed and included from the outset.

If both parties agree, a deed of rectification can be entered into instead, or perhaps a fresh deed of grant. If, however, the parties do not agree, then good neighbourly relations are likely to suffer as well.