Archive for the ‘Implied reservation’ Category

Meaning of easement of necessity

July 9, 2011

An easement of necessity arises when the property could not be used at all without it.

Ray v Hazeldine ([1904] 2 Ch. 17) concerned two neighbouring houses, originally in common ownership. H sold one house to R without reserving any easements. R then built a wall that stopped light reaching a room used as a pantry in the house retained by H. H knocked it down. R sought a declaration that she was entitled to build the wall. H claimed a right of light as an easement of necessity. It was admitted that the pantry could not be used as a pantry if the light to it was obstructed by the wall. The claim failed. This was not an easement of necessity since some other use could be found for the pantry which did not depend on the flow of light through the window. It was not enough that the claimed easement should be reasonably necessary; it must be absolutely necessary if an easement of necessity was to be implied.


Exceptional case of an implied reservation

July 8, 2011

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.