Implied easements—common law
Implied easements—common law

The following Property practice note provides comprehensive and up to date legal information covering:

  • Implied easements—common law
  • Implied ‘reservation’
  • Necessity
  • Intended use
  • Wheeldon v Burrows
  • Continuous and apparent
  • Statutory implication
  • Exclusion
  • Mortgagees
  • Standard Conditions
  • More...

There are three different ways by which an easement can be implied at common law:

  1. necessity

  2. intended use

  3. the rule in Wheeldon v Burrows

The implied grant of an easement arises out of an express grant or disposition of the servient or dominant tenement (or the simultaneous disposition of both). An easement can only be implied where both the dominant and servient tenements have been in common ownership. An implied easement can arise on the grant of a lease, but it is limited to the actual continuance of the lease.

The right claimed must be capable of forming the subject matter of an easement. For more information see Practice Note: Easements—nature and characteristics.

Implied ‘reservation’

Strictly speaking ‘reservation’ is an inaccurate description. In theory, an easement cannot be the subject matter of a reservation as it does not issue out of the servient land sold. A more accurate description is a grant by the buyer of the servient land in favour of the dominant land. However, we use ‘reservation’ in this Practice Note to describe the implied grant of an easement in favour of the retained land, to differentiate from the implied grant of an easement in favour of the land sold.

Necessity

The principles that a person shall not derogate from grant and that a grant is construed in favour of the grantee, operate in favour of the buyer

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