Implied reservation
Implied reservation may arise where the owner of two tenements sells the quasi-servient tenement. Because of the principles (a) that a grant is construed in favour of the grantee, and (b) that a grantor must not derogate from his grant, the law is reluctant to imply easement in favour of the vendor of the land. If the vendor wishes to retain right over the quasi-servient tenement, he should expressly reserve them in the conveyance. The only easements that will be implied in of the vendor are:
(a) easement of necessity; and
(b) intended easements.
Easements of necessity
The same rules apply here as apply to implied grant.
Intended easements
As in the case of implied grant, any easements that are required to carry out the common intention of the parties, will be impliedly reserved for the grantor. For example, where the owner of a duplex house, sells one part and retains the other, an easement of support will be impliedly reserved for the benefit of the vendor; since it would be necessary to carry out the parties’ common intention.
Non-applicability of Wheeldon v Burrows
The rule in Wheeldon v Burrow, does not apply to quasi-servient tenement is sold and the quasi-dominant tenement is retained. Therefore, if the vendor wishes to reserve easements in his favour, he should do so expressly in the deed of conveyance.
Acquisition under Statutory provisions
Section 9 of the Conveyancing Act 1973 of Jamaica, provides that, unless contrary intention is expressed in the conveyance:
A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, water-courses, liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertaining to the land or any part thereof.
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