Easement implied by common intention of the parties (Court of Appeal)

The Court of Appeal has held that a transferee of a residential building plot had impliedly been granted an easement by way of common intention to lay their public utility services in the transferor’s retained land to connect to the mains services in the public highway.

Although the transfer contained provisions dealing with the grant of a right of way, it omitted specific provisions dealing with the laying of services. All that was expressly granted was a right of way over the land “for all purposes connected with the use and enjoyment of the property but not for any other purpose”.

The transfer also contained wording purporting to exclude the grant of additional easements.

The transferor submitted that no inconsistent term could be implied where the express provisions of the transfer negated the rights claimed.

The Court of Appeal, upholding the county court judge’s decision, confirmed that the express provisions of the transfer did not exclude the implied easement.

Lord Justice Vos, providing the leading judgment, stated that the auction particulars and conditions had made it clear that the purpose of the transfer was to enable the transferee to build a house on the plot. Consequently, it must have been intended that this included the right to lay mains utility services and the maintenance of those connections across the obvious route, which was the transferor’s retained land.

Easements of necessity and implied easements of common intention are notoriously difficult to establish. This case may provide some comfort to those with transfers that may appear to be lacking. (Donovan and another v Rana and another [2014] EWCA Civ 99.)