Implied easements—common law


Published by a ÀÏ˾»úÎçÒ¹¸£Àû Property expert
Practice notes

Implied easements—common law


Published by a ÀÏ˾»úÎçÒ¹¸£Àû Property expert

Practice notes
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There are three different ways by which the creation of an easement can be implied at Common law:

  1. •

    necessity

  2. •

    intended use

  3. •

    the rule in Wheeldon v Burrows

Note that easements may also be implied by statute under section 62 of the Law of Property Act 1925 (LPA 1925), see Practice Note: Easements—LPA 1925, s 62 and permissions.

The implied grant of an easement at common law arises out of an express disposal of the servient or dominant tenement (or the simultaneous disposition of both). An easement can only be implied where both the dominant and servient tenements have been in common Ownership. An implied easement can arise on the grant of a lease in the same circumstances as on a transfer or conveyance, but it is limited in time to the actual continuance of the lease.

In the interests of simplicity, the discussion that follows in the remainder of this Practice Note will refer solely to the scenario of a sale.

The right claimed must be capable of forming the subject matter of an easement.

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Common law definition
What does Common law mean?

Common law is case law (decisions from courts and tribunals). Case law has also established and developed many principles of law and equity not covered by legislation. Case law is therefore a key source of primary law.

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