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Easement Essay 1: ‘The vendor and purchaser of land should make express provision forany easement that they want. The law should rarely imply easements in their favour.’ Discuss
Question is taken from the Property Law Subject Guide and some of the points they require
for a good answer are:
“A well-focused answer would examine in detail the situations in which the law will imply an
easement in favour of (i) the grantee of land and (ii) the grantor of land. A grant may be
implied in the case of easements of necessity, intended easements, easements under the rule
in Wheeldon v Burrows, and by the operation of s.62 LPA 1925. The implied reservation of
easements is limited to the first two categories. Why does the law make this distinction? What
is the justification for implying easements? Have the courts defined the various categories of
implied easements in a restrictive or in a broad manner? There is a wealth of case law to be
considered in this context.”
Answer: The complexity of the above statement is revealed as one discovers that it’s validity
can only be accessed upon considering six different points. To elaborate, one could agree
with the statement that the law should not readily allow for an implied easement.
Additionally, one could also disagree with the statement on two opposing views. First, the
law should never allow for an implied easement and secondly, the law should allow for an
implied easement unrestrictedly. The three points mentioned, can then be considered in light
of favouring the vendor or the purchaser.
The discussion that follows will lead to a reasoned conclusion that the statement is correct as
implied easements should only be allowed in certain circumstances. It is in my opinion that
such a position strikes a good balance between safeguarding the vendor from unexpected
easements and ensuring that the purchaser can reasonably enjoy his/her property. In reaching
this conclusion, the discussion will analyse the different situations in which the law will
imply an easement. There is a total of four situations that will be discussed: the case of
easements of necessity, implied easements by common intention, easements under the rule in
Wheeldon v Burrows, and by the operation of s.62 LPA 1925. These four grounds will be
explained, analysed and discussed in light of the six points mentioned earlier.
Implied easements based on necessity: An easement (a proprietary interest to use another’s
land for a specific purpose) may be implied into a transfer of land for the necessity of
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, ensuring that the sold land does not become useless. For instance, in the case of Wong v
Beaumont, an easement of ventilation by necessity was held to exist as the land sold was
intended to be used as a restaurant. Because the restaurant could not be used without an
easement for ventilation, an implied easement was held to exists due to necessity.
Although the justification for finding an implied easement is fairly straightforward but yet
crucial, it must be balanced with the risk of overburdening the servient land. In light of this,
case laws such as Manjang v Drammeh have held that an implied easement based on
necessity should not be granted for the mere convenience of the dominant land but a
necessity. The facts, of Manjang illustrates this point as the Court held that an easement to
utilise a street access to the ‘dominant land’ did not qualify as a necessity as the ‘dominant
land’ could be accessed via a river strip. At this point it can be seen that an easement is not
implied freely but will only be done so if the dominant land is to be useless.
It should be noted that the above elaboration is in light of easements granted in terms of a
grant. These are situations where A sells part of his land to B and the conveyance grants B an
easement. A’s land becomes the servient while B’s land becomes the dominant. This should
be contrasted with easements in light of reservation where A sells part of his land to B and
reserves an easement for himself/herself (A). Here, A’s land becomes the dominant land
while B’s land becomes the servient land as in the case of Pennington v Galland.
In light of an implied easement for necessity, the law is rightfully against the seller as the
seller had the opportunity to expressly provide for the easement in the conveyance. In my
view, this can be seen as the bare minimum responsibility the law imposes on the seller
whom will benefit from the easement and a failure to fulfil this responsibility due to bad
drafting or an oversight should rarely be remedied by the law. One example of a case that
allowed for such an easement to implied is in Sweet v Sommer where an alternative route to
access the dominant land by vehicle would require the breaking down of a wall.
It must be stated that Sweet v Sommer should not be interpreted as a case law that illustrates a
broad approach taken by the Courts. This is a judgement specific to its facts, interestingly,
when the case reached the COA in Sommer v Sweet, the COA had affirmed Hart J’s
judgement on the ground of proprietary estoppel as opposed to an easement based on
necessity. The COA held that the appeal would not be the “proper vehicle” (arguably an
unintentional pun) to address the complex issue of necessity and instead decided on
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