Easement implied by common intention of the parties

Easement implied by common intention of the parties

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Author: Chris Dolan

The Court of Appeal has held that the owner of a building plot should be granted an implied easement by common intention to lay mains utilities in the seller's adjoining land to connect to the mains in the public highway.

The case of Donovan and another v Rana and another [2014] concerned the sale of a residential building plot at auction, with the seller granting an express right of way over part of her adjoining land (the blue land). The right of way was granted "for all purposes connected with the use and enjoyment of the property but not for any other purpose".

The auction particulars and transfer between them also provided that:

  • the building plot was "a super individual building plot situated in a pleasant residential area..where building plots are extremely rare"         
  • that there should be erected "within one year.upon the property, the dwelling house to the satisfaction of the Local Authority" · 
  • before occupying the new house the transferee would lay on the blue land a tarmac or such other surface as might reasonably to requested by the seller

The first buyer of the building plot got into financial difficulties and sold it on to Mr and Mrs Rana.

Mr and Mrs Rana built a house on the plot and allowed their workmen to dig up the blue land for the purpose of connecting normal utilities to the new house without the express permission of the claimant, Mrs Donovan.

Initially Mrs Donovan claimed an injunction to halt the works as a trespass but then limited her claim to damages. In their defence, Mr and Mrs Rana relied on the alleged self evident intentions of the parties giving rise to an easement of necessity for the laying of services through the blue land.

The County Court dismissed the claim for damages. The judge stated that it was the common intention of the parties to the original transfer of the plot that it would be used to build a modern house in a busy residential area which complied with all local authority requirements - and such properties have modern facilities connected to the mains services in the public highway.

Mrs Donovan appealed to the Court of Appeal but the appeal was dismissed. Lord Justice Vos, who gave the leading judgement, ruled that the easement could be implied from the original common intention of the parties. 

The auction particulars and the conditions had made it clear that the purpose of the transfer was to enable the buyer to build a house on the building plot. Indeed, the buyer was granted a right of way over the blue land "for all purposes connected with the use and enjoyment of the property but not for any other purpose" and Vos LJ considered that one such purpose would be the laying of connections to services.

The Court of Appeal decided that given the modern context of a transaction involving the building of a house on a plot in a suburban area, it was entirely necessary to imply easements to lay services through the blue land. Vos LJ declared that an easement was to be implied into the original transfer which allowed the transferee and its successors in title to install and maintain connections to the various standard utilities.

This ruling provides an important lesson that a transfer document should clearly set out all the rights necessary for a plot owner's intended use and occupation of the land. This is particularly important where, as here, it is a single plot being sold by an adjoining owner. 

The burden or proof on those seeking to claim that an easement is impliedly granted as a matter of common intention is heavy one - and there is no guarantee that a court would make the same findings as in Donovan v Rana.  

About the Author

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Chris Dolan

Partner

03700 86 6920

Chris is a Partner in Shoosmiths' real estate department and is head of the southern residential development team that advises national and regional housebuilders. He is also experienced in dealing with commercial development and ground rent services.

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