Easements and Covenants

Question 1

In this question we will discuss the essential characteristics of an easement considering the law specifically relating to implied easements considering the rule in Wheeldon v. Burrows (1879) 12 ChD 31 and section 62 of the Law of Property Act 1925. Discussing easements by expressed reservation on a sale of part. In addition negative easements and the requirements under section 4 of the Prescription Act 1832.

In order to advise Jason it has to be established that in each case the right being claimed is an easement. An easement is a right over a piece of land which benefits another piece of land. To be capable of being an easement it must possess four essential characteristics such as, there must be a dominant tenement and servient tenement, the interest must accommodate the dominant tenement, there must be diversity of ownership and occupancy and the right must lie in grant (Re Ellenborough Park [1956] Ch 131).

a) The reconnection of water supply

The four essential characteristics are present. There is no express grant. The right claimed is capable of being an implied easement on a sale of part. There are several ways in which such easements may be acquired. Under the rule in Wheeldon v. Burrows (1879) 12 ChD 31 the right must be continuous and apparent and necessary for the reasonable enjoyment of the vegetable plot. Theisger LJ stated that the rules were founded on the maxim that 'a grantor shall not derogate from his grant'. The rule is also interpreted by Bowen LJ in the case of Ford v. Metropolitan and Metropolitan District Rly Co. (1886) 17 QBD 12.

It is clear from the facts that Arthur installed the watering system specifically to supply the vegetable plot creating a quasi-easement. Considering Wheeldon v. Burrows Arthur's use would be considered to be both continuous and apparent and necessary for the reasonable enjoyment of the plot. Maria the new owner enjoyed the same rights. This would imply an easement to the right of water for the purpose of the vegetable plot. The facts do not suggest an alternative method in supplying water to the plot.

Therefore applying the rule in Wheeldon v. Burrows Graham is likely to succeed with an implied easement.

However there is an alternative to the rule in Wheeldon v. Burrows. Graham may rely on s.62 of the Law of Property Act 1925. Under s.62 a conveyance will be deemed to convey all privileges enjoyed with the land. At the time of Graham's conveyance the water system and the vegetable plot were in separate occupation. The effect of s.62 is to convert the privilege enjoyed by Graham into an easement. Under s.62 there is no requirement for the right to be continuous and apparent or necessary for the reasonable enjoyment of the vegetable plot. Therefore Graham is likely to succeed under s.62.

b) Accessing