It is not uncommon for a prospective purchaser of land to spot
that some kind of easement (like a right of light or a right of
way) over a neighbouring property might be in place even though
there is no corresponding right registered at the Land
Such an easement could have been acquired by use without force,
without secrecy and without permission over a period of 20 years or
It might also have been acquired by implication:
on the basis of the right having been in existence and used at
the time of the original carving out of the parcel of land being
acquired. This is provided that there was no express
exclusion of the magic dust that is sprinkled on such transfers by
section 62 of the Law of Property Act; and/or
the principles set out in the case of Wheeldon v
Burrows turning such quasi-easements into formal easements on
the creation of the new parcel of land.
If neither of these circumstances apply it is also possible,
though, that an easement may have been created in the past by legal
implication on the basis of the common intention of both the
vendors and the purchasers.
This common intention has to be held by all of the relevant
people which will include:
the owner of the whole of the original land ("the Original
following the original transfer carving out the new titles, the
owner of the dominant land - i.e. the land which has the benefit of
the right being exercised – ("the Dominant Land
the servient land - i.e. the land over which the right is
exercised ("the Servient Land Owner").
In the recent case of Linvale v Walker (in which
Wedlake Bell acted for the successful Dominant Land Owner) the
court were asked to find that there was a common intention to grant
a right of way. It was argued by Wedlake Bell that even if no
use of the emergency right of way had been exercised for a number
of years before the transfer (as the property had been unoccupied
for some time) all of the Original Land Owner, the Dominant Land
Owner and the Servient Land Owner intended that a right of way be
granted in favour of the Dominant Land Owner over an emergency exit
on land belonging to the Servient Land Owner. Specifically,
the Servient Land Owner was going to benefit financially if the
Dominant Land Owner was able to let the separate parts of the
commercial space to different tenants as quickly as possible.
This was more likely if the tenants of different parts of that
space were able to use the emergency right of way. Likewise,
the Original Land Owner had an obligation to pay monies equivalent
to a rent until tenants were found so it also benefited financially
from separate parts of the commercial space being able to use the
emergency right of way.
The finding of the court was, therefore, that even though the
emergency right of way had not been used by anyone for a number of
years prior to the sale by the Original Land Owner to the Dominant
and Servient Land Owners it was still possible to imply such an
easement on the basis that this was what all of the relevant
parties had intended at the time of the transfers.
So, anyone thinking about buying a property which looks like
there could be unregistered easements benefiting or being exercised
over that land should not only think about what rights were being
exercised at the time of the original carving up of the Dominant
and Servient Land, but also whether all of the parties to those
original transfers might have intended that the Dominant Land have
the benefit of an easement even though it was not being exercised
at the time of the transfers.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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