Implied Easements — UK Landlord and Property Guide

Section 62 LPA 1925 — The 'General Words' Clause

Section 62 of the Law of Property Act 1925 provides that every conveyance of land passes to the grantee 'all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights and advantages whatsoever' appertaining to or enjoyed with the land conveyed. The critical practical effect is that informal permissions or licences that were being exercised by the occupier of the land conveyed (over the vendor's or landlord's retained land) can be upgraded to full legal easements by the conveyance or grant of lease. Wright v Macadam [1949] KB 744 is the leading example: a tenant had informal permission to use a coal shed on the landlord's retained land; when the tenancy was renewed, s.62 operated to convert that permission into a full legal easement.

• S.62 LPA 1925: every conveyance of land passes all rights, privileges, and easements enjoyed with the land — informal permissions can be upgraded to legal easements
• Wright v Macadam [1949]: permission to use coal shed on landlord's retained land became a legal easement on grant of new tenancy — s.62 operated without any intention to grant the right
• Prior diversity of occupation required: s.62 only operates where the 'dominant' land (part conveyed) was separately occupied from the 'servient' land (retained part) before the conveyance — Sovmots Investments v Secretary of State [1979] AC 405
• Lease grants: s.62 operates on grant of a lease as well as a sale — every new tenancy renewing an existing tenancy risks converting permissions to easements
• Exclude s.62: commercial conveyances and leases should expressly exclude s.62 operation to prevent unintended easements — 'nothing in this [deed/lease] operates to grant any easement other than those expressly granted'

Wheeldon v Burrows — Implied Grant of Quasi-Easements

The rule in Wheeldon v Burrows (1879) 12 Ch D 31 applies where a vendor or landlord, who holds a larger estate, sells or leases part of it. At the time of the disposition, the part retained may have been benefiting from certain 'quasi-easements' (rights that the owner exercised over one part of their land for the benefit of another part — they could not be legal easements because the same person owned both parts). On the sale or lease of the part that benefited from the quasi-easements, the rule in Wheeldon v Burrows implies a grant of those quasi-easements as legal easements, provided they are (1) continuous and apparent AND (2) reasonably necessary for the comfortable enjoyment of the part granted.

• Wheeldon v Burrows (1879): on sale/lease of part, vendor impliedly grants quasi-easements that were continuous and apparent AND reasonably necessary for comfortable enjoyment
• Continuous and apparent: quasi-easement must be visible or discoverable by inspection of the property at the time of the grant — a well-worn path, a drain visible at the surface, roof guttering running across the retained land
• Reasonably necessary (not strictly necessary): more than convenient, but less than absolutely essential — right of way over the only practicable access route is clearly within the rule
• Distinction from s.62: Wheeldon v Burrows operates even without prior separate occupation — it can apply on the very first letting of part of a building; s.62 requires prior separate occupation
• Alternative grounds: if Wheeldon v Burrows fails (e.g., quasi-easement was not continuous and apparent), s.62 may still apply if prior separate occupation existed; or easement of necessity may arise

Easement of Necessity

An easement of necessity arises where land would be entirely landlocked — physically inaccessible — without an implied right of way over the vendor's or landlord's retained land. The law implies a right of access as a matter of necessity. Key points: (1) necessity is strictly interpreted — not merely inconvenient but genuinely inaccessible (Barry v Hasseldine [1952]; Manjang v Drammeh (1990) 61 P&CR 194); (2) the necessity must exist at the time of the grant, not arise later; (3) the easement is of the minimum extent necessary to give access — it does not extend to a right of way for a specific use if a lesser access would suffice; (4) an easement of necessity arising on a grant is matched by a corresponding implied reservation in favour of the grantor's retained land if that land would also be landlocked.

• True landlocked land: easement of necessity arises only where land is genuinely landlocked at the time of the grant — existing access (even inconvenient) defeats the claim
• Minimum necessary: the implied easement is the minimum extent of access needed — not a general right of way for all purposes if less is sufficient
• Necessity at grant: the necessity must exist when the lease or transfer is made — if land becomes landlocked later (e.g., neighbour closes off a path), easement of necessity does not then arise
• Mutual benefit: an implied grant of a right of way of necessity over retained land may be coupled with an implied reservation in favour of the retained land if it would also be landlocked
• Distinguish from convenience: courts are reluctant to imply easements of necessity — inconvenient access is not sufficient; the land must be effectively inaccessible

Common Intention Easements

Where the specific purpose for which land is sold or leased makes it clear that a particular easement must have been intended by both parties, the court may imply an easement on the basis of common intention — even if the easement is neither continuous and apparent (Wheeldon v Burrows) nor a matter of strict necessity. The leading House of Lords authority is Pwllbach Colliery Co v Woodman [1915] AC 634: where land is sold for a specific purpose that both parties know requires a particular right (e.g., an easement to collect coal dust from an adjacent colliery), the court may imply that right. This route requires clear evidence of the common intention of the parties regarding the purpose for which the granted land was to be used.

• Common intention (Pwllbach Colliery [1915]): implied easement where specific purpose of the grant makes a right obviously necessary — both parties must have intended the purpose
• Evidence of purpose: the intended use must be clear from the conveyance itself, or from extrinsic evidence of what both parties understood the land to be used for
• Beyond necessity and Wheeldon: common intention easements fill the gap where the easement is necessary for the contemplated use but not for general access (not 'necessary' in the strict sense)
• Wong v Beaumont Property Trust [1965]: tenant of basement restaurant required extractor fan duct through landlord's retained building — implied by common intention (restaurant use required ventilation)
• Limits: the intention must be shared — the tenant/purchaser cannot rely on their own undisclosed purpose; the easement must be necessary for the contemplated use, not merely convenient

Registered Land, Overriding Interests, and Excluding s.62

The Land Registration Act 2002 (LRA 2002) changed the rules for implied easements in registered land. Under s.27(1) LRA 2002, a legal easement over registered land cannot operate at law unless it is registered or qualifies as an overriding interest. Legal easements implied under s.62 or Wheeldon v Burrows may qualify as overriding interests under LRA 2002 Schedule 3, paragraph 3 — but only if they were known to the disponee or would have been obvious on a reasonably careful inspection of the land, or had been exercised within the year before the disposition. Landlords granting leases or transfers of part of their registered estate should include express exclusions of s.62 and Wheeldon v Burrows to prevent unintended easements arising, and should ensure all intended rights are expressly granted and registered.

• LRA 2002 s.27: legal easement over registered land must be registered (or qualify as overriding interest) to operate at law
• Overriding interest (LRA 2002 Sch 3, para 3): legal easement qualifies as overriding if it was obvious on reasonable inspection OR known to the buyer OR exercised within the year before the disposition
• Unregistered easements: implied easements not registered and not qualifying as overriding interest may be equitable only — binding only on parties with notice
• Exclude s.62 expressly: commercial leases and transfers should include an express exclusion of s.62 LPA 1925 to prevent conversion of informal permissions to legal easements
• Register expressly granted rights: any easements the landlord intends to grant (e.g., rights of way, drainage rights) should be expressly set out in the deed and noted on the title register

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