Easements as an ‘appurtenance’

Where the owners of land have had de facto use of a passageway and there is a later grant of the land with its ‘appurtenances’ the use of the word ‘appurtenances’ and CPO s.16 can each act as independent bases on which to imply the grant of an easement. Where there is a simultaneous conveyance of several adjoining plots relying on a private road or passage for access each of the plots can have the benefit of an easement of common intention.  Each purchaser must be aware of the simultaneous transactions.

In Hansford v Jago ([1912] 1 Ch. 322) V owned a terrace of four houses. He also owned a strip of land behind the four houses. The tenants used the land to get to and from the public highway and there were gates from the back of their houses into the passage. The houses were each sold at a public auction. They were sold with their ‘appurtenances’. It was held that the right to use the passage was ‘an appurtenance’ and so the conveyances included grants of the easement to use the passage as a right of way. The then English equivalent of CPO s.16 would have the same effect. Further, each owner had the benefit of an easement of common intention; it was obviously intended that the passage should be for their use. The timing of the sales didn’t matter. There was no question of falling foul of the second limb of Wheeldon v Burrows: the sales were simultaneous and each purchaser was aware of the other sales.

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