Lecture 11 – Easements 3 PDF

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Lecture 11 – Easements 3

LPA 1925 s62(1) LPA s62 (1) 

The law will impliedly grant (but not reserve) an easement on the conveyance of part of land by virtue of the Law of Property Act s.62(1)

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Again, the operation of s.62(1) can be excluded by contrary intent in the transfer documentation

General words: LPA s62 (1) 

“A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”

Implication under s 62 (1) 

S.62(1) operates on the “conveyance” of land i.e. grant or transfer of a legal estate - Therefore is inapplicable in the transfer of an equitable freehold or leasehold

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S.62(1) operates to imply into a conveyance of land all “liberties, privileges, easements rights, and advantages whatsoever, appertaining…to the land…or enjoyed with…the land” - Range of advantages benefitting the land being transferred - Explicit mention of easements – implies into conveyance existing easements which benefit the land transferred – pass to transferee – contrast to covenants where there needs to be annexation to pass benefit - “any right whatsoever” – section 62 is v broad – not just easement – any right benefitting land prior to the conveyance is implied into the conveyance using s 62

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There must be evidence of a pattern of regular use of the right for a reasonable period before the conveyance

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Case law dictates that a right cannot appertain to a right of land, if it is enjoyed on a permissive basis – Green v Ashco – could only access land when it is convenient to owner so is not covered by section 62.

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If the right is enjoyed by favour or indulgence it cannot be implied under section 62 – right is not enjoyed by the land but because of the personal relationship between the two owners of the land – Goldberg v Edwards. But in International Tea Stores v Hobbs – courts have allowed section 62 to imply what appears to be a personal right into the conveyance of land

Lecture 11 – Easements 3 Transforming an easement-shaped right into an easement 

When an easement-shaped right is implied into a conveyance by s.62(1), the right assumes the formality of the conveyance - Rights which possess the content of an easement as stipulated in Ellenborough Park, but which do not yet amount to easements because they have never been expressly created with the formality necessary to take effect in law or equity - Have the contents of an easement but haven’t been created with the right formality

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When an easement shaped right is conveyed using s 62 this repairs the lack of formal conferral, and enables the easement-shaped right to be elevated from a licence to a proper easement - Easement shaped right will be implied into the deed of conyance and assume the formality of the conveyance – as if it has been made by deed -

Distinguishing LPA 1925 s62(1) from Wheeldon Points of similarity   

Both doctrines imply an easement on transfer on the basis that pre-transfer an easement-shaped practice occurred for the benefit of the transferred land Both doctrines operate to grant, not reserve, easements The operation of both doctrines can be excluded by contrary intent in the transfer documentation

Points of difference  

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LPA s.62(1) only operates on the “conveyance” of part of land; Wheeldon can operate on the grant of an equitable estate in land LPA s.62(1) demands that an easement-shaped practice exist pre-transfer. Wheeldon demands in addition that the practice be “continuous and apparent” and “necessary for the reasonable enjoyment of the transferred land” S62 therefore engaged must more frequently than under Wheeldon

Points of difference: unity vs diversity of occupation? – whats the point in having both – s62 undercuts Wheeldon other than in a small amount of cases that involve equitable freeholds/leaseholds  

Historically, the courts drew a further distinction between Wheeldon and s.62(1) Wheeldon applied when prior to transfer X owned and occupied a single plot of land; s.62(1) applied when prior to transfer X owned two plots of land, occupying only one of the two plots

Unity of ownership and occupation (historically, only Wheeldon)

Lecture 11 – Easements 3  

Pre-transfer, Claire is the registered proprietor of Blackacre’s freehold estate and Blackacre’s sole occupant Wheeldon would apply – because you have c who owns the land and is the sole occupier

 Unity of ownership WITH diversity of occupation (only s62(1))  

Pre-transfer, Claire is proprietor of Blackacre’s freehold estate but occupies only part of Blackacre (grounds). The House is occupied by you (pursuant to a lease or licence) S62 would apply – when the owner only occupiers some of the freehold – you have a license or a lease that allows you to live in the house

 Why didn’t s62(1) apply to unity of occupation situations?   

LPA s.62(1) implies a range of ”rights and advantages” into a conveyance of land Historically, the courts considered it impossible for part of land belonging to a sole owner-occupier to benefit from a “right” over the other part Given this, a quasi-easement exercised by a sole owner-occupier could not qualify as a “right” and so could not be implied into a conveyance of land under s.62(1)

Sovmots v Secretary of State 

“Section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges…being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc, does not exist.” (Lord Wilberforce)

Kent v Kavanagh 

“As Lord Wilberforce pointed out in Sovmots, there can be no sensible concept of rights over one part of land for the benefit of another part while the two parts are in common ownership and occupation. But, once there is a separation of occupation (because part of land in common ownership is held by a tenant under a lease) there is no conceptual difficulty. There may well be rights over the untenanted part of the land for the benefit of the tenanted part. If there are, those rights are within the wide compass of section 62 of the 1925 Act.” (Chadwick L.J)

Lecture 11 – Easements 3

Wood v Waddington [2015]    

In the 2015 Court of Appeal decision in Wood v Waddington, Lewison LJ held that: There is no bar to LPA s.62(1) applying to situations of prior unity of ownership and occupation [25] S62 can also apply where there is prior unity s.62(1) only applies to unity situations if the right is continuous and apparent in the Wheeldon v Burrows sense [25]-[27]; [35]

Post 2015 - Unity of ownership and occupation (now both s62 (1) and Wheeldon  

Pre-transfer, Claire is the registered proprietor of Blackacre’s freehold estate and Blackacre’s sole occupant We can now hold a right about yourself – decision goes against previous house of lords authority – undercuts Wheeldon and Burrows – only applies where equitable freehold/leasehold

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Formality and effect on a dispone Implied easement: legal or equitable?  

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An easement implied into a transfer of land assumes the formality of the transfer An easement implied into a deed of transfer satisfies LPA s.52(1) and is legal (LRA s.27(2) (d) limited to the “express grant or reservation of an easement”) - Implied easements are legal without being registered – legal purely because the have been implied into a deed which satififies s 52 An easement implied into a written document doesn’t satisfy LPA s.52(1) and can only take effect in equity

Effect on disponee   

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If LRA s.29 is engaged, an easement binds if (i) registered; or (ii) overriding (Sch 3) An implied easement will likely be unregistered (no awareness that the easement exists often – no awareness there is a right that needs to be registered – making them unlikely to be registered) so when youre trying to make an implied easement bind a third party you will have to go under Sch 3 Sch 3 Paragraph 3 allows an implied, legal easement to override if: (i) the disponee knows of it;

Lecture 11 – Easements 3 (ii) (iii)

OR it would have been obvious on a reasonably careful inspection; OR it has been exercised in the past year

Blackacre example 

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Claire is the registered proprietor of Blackacre, a large property including a selfcontained top-floor flat. In January 2016, Claire leases the flat to Jamie. Shortly thereafter, Claire agrees that Jamie can use part of a shed in Blackacre’s grounds to store his belongings; Jamie moves his belongings in straight away. In June 2017, Claire sells the freehold estate in the flat to Jamie. The transfer is effected by deed, and Jamie registered as proprietor. Jamie continues to use the shed for storage. In November 2017, Claire sells the freehold estate in the remainder of Blackacre to Polly for £900,000. Polly, who has now been registered as proprietor, wishes to prevent Jamie from storing his belongings in the shed. Can Polly prevent Jamie from storing his belongings in the shed? NO - Claire has never expressly given Jamie an easement to use the shed to store his belongings. Permission she gave him in 2016 amounts to a mere license as it lacks the necessary formality to be recognized as a legal or equitable easement - May be able to imply the easement through the transfer of land (via necessity, Wheeldon or S 62) - Unity of ownership but diversity of occupation from Jan 2016 – when Jamie was leasing the flat. Then she sells the flat to Jamie. - Implication is s62 – unity of occupation (cant use Wheeldon) - Can we imply an easement into the deed? - S62 operates on the conveyance of land (grant or transfer of the legal estate) – was a conveyance – deed and Jamie registered as proprietor – legal owner of land - S62 operates to imply all rights enjoyed by the land, prior to the conveyance – Jamie is enjoying storing stuff in the shed – continuous, non permissive, and not based on their relationship- not personal permission – right is enjoyed by the land - Can be implied – it is easement shaped – Ellenborough park but has not been created with the necessary formality - Lack of formal creation is rectified when it is implied into the deed under s62 – transfers from a license into a proper easement – implied easement is legal. - Jamie has a right in rem – can it bind Polly the new owner of Blackacre – look towards LRA 2002 - LRA 2002 – Polly is a purchaser of a burdened land - LRA s29 – have we got a registered land – yes – registerable disposition - Valuable consideration YES - Polly is a now registered proprieter – Polly can now be bound - Jamies right is not registered so will only bind if It falls under Schedule 3 (para 3) – any legal easement will bind if the disponee knows about it, would be obvious upon reasonable inspection or has been exercised in the last year – YES...