Definition of user: the exercise of a right to the enjoyment of property
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- Implied grant
- Easement of Necessity
| Express Reservation (where the dominant tenement is retained)
The question of reservation arises where the owner of the land sells part and retains the rest, and wishes to reserve an easement over the land sold in favour of the land retained by him. At common law, a vendor cannot directly reserve for himself any easement over the land sold. He can only do so indirectly by getting the purchaser to regrant the easement back to him. Implied grant We have seen that a person cannot have an easement over his own land. If D owns two adjacent plots, Blackacre and Whiteacre, and D habitually crosses Whiteacre in order to reach minimart on the other side of Whiteacre, D is not exercising any easement, but simply making use of Whiteacre as the owner. Although a person cannot have an easement over his own land there is nothing to prevent a purchaser of land from acquiring an easement over the other land retained by the vendor. In this case, Blackacre is called a quasi-dominant tenement and Whiteacre is called a quasi-servient dominant tenement. Such an easement may be granted expressly, but failing the same, the purchaser may still be able to rely on the rule of law whereby easements are implied in his favour. There are three categories of easement that may be implied in favour of the purchaser: Easement of necessity; Intended easements; and Easement within the rule in Wheeldon v Burrows.\ Easement of Necessity An easement of necessity most often arises where the land sold is surrounded by the land retained by the vendor or by land in possession of a third party, and unless a right of way is implied over the surrounding land, the purchaser of the landlocked plot will have no access to and from his land. In such cases, and easement of way can be implied over the quasi-servient tenement (Lush v Duprey). However, there has been some cases in which the distinction between easements of necessity and intended easements. One case that burrs the distinction is Wong v Beaumont Property Trust, which is also unusual in the sense that the plot was not landlocked. In a lease granted for 21 years, the tenant covenanted to use premises as a ‘popular restaurant’ and to control all odours according to health regulations, so as not to create a nuisance. Although the parties did not realize it at the time the lease was made, it was necessary, in order to prevent the smells, to construct a ventilation duct to the outside wall of the premises, the wall being in possession of the landlord. The odours coming from the restaurant caused the occupant of the floor above to complain, and the public health inspector required a duct to be built. Lord Denning MR said: “The question is: has the tenant a right to put up this duct without the land Landlords consent? If he has any right at all, it must be by way of an easement … in particular, an easement of necessity” The effect of the agreement was that the plaintiff was entitled to construct the duct and to enter the landlord’s part of the premises in order to maintain and repair it. Download 50.55 Kb. Share with your friends:
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