Exceptional case of an implied reservation

The burden of proof is on the person claiming an implied reservation of an easement. The test is whether the circumstances raise a necessary inference of an intention common to both parties that a right of way should be reserved.

Peckham v Ellison ((1993) 31 H.L.R. 1030, CA (Eng)) concerned two neighbouring houses that formed part of a terrace of council houses (houses owned by the local authority and available for rental). They had been built in the 1940s and from the beginning the tenants of number 16 had exercised a ‘right’ of way not expressly granted to them to use a path on the land forming part of number 15 to get to the back door of number 16. In the 1980s the tenants of both houses bought them from the local authority. Number 15 was sold first and there was no express reservation of any right of way over the path leading to the back door of number 16. The question was whether there had been an implied reservation. It was held that this was one of those exceptional cases in which an easement had been impliedly reserved.

The Court of Appeal applied the test propounded by Jenkins L.J. in Re Webb’s Lease: did the circumstances raise a necessary inference of an intention common to both parties that a right of way should be reserved? The burden of proof  is on the person claiming that an easement had been impliedly reserved to show that the facts are not reasonably consistent with any other explanation.

Here the test was satisfied. The Court of Appeal pointed to a number of exceptional circumstances such as the long-held belief on the part of the tenants (and later the owners) of both houses that such a right existed.

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