Implied easements
The Conveyancing Committee received a request from a solicitor for guidance on whether a wayleave should be obtained and registered in a given situation.
Conveyancing 04/12/2020- The Conveyancing Committee received a request from a solicitor for guidance in relation to the following situation. A row of ten terraced houses in a city was built 50 years ago. The houses front onto a public road, but the drain serving all ten houses was laid along the rear of the houses to the last house in the row, and then connects through its driveway to the public sewer, which is located in the public road. The solicitor making the enquiry wanted to know if it was necessary for his client to seek a grant of a wayleave from all the relevant neighbours or to seek to register a wayleave through the PRA or apply to the Circuit Court for an order, and then seek to register the same .
- There are a great many examples where a wide variety of houses in a row or terrace, or in a building estate, both old and new, are served by drains that do not have the benefit of a formal grant of easements, or where the easements granted by the first deed of sale are incomplete.
- . The solicitors’ profession has accepted up to 1 December 2009 that, as a matter of practice, houses such as are detailed in paragraphs (1) and (2) above would have been deemed to have an implied easement at common law in relation to any drain running from the house through other private property to the point of connection into a public sewer.
- The issue of implied easements at common law was considered by the Court of Appeal in 2017 in the case of Palaceanne Management Limited v AIB [2017] 2 IR 675. Ryan, P, the President of the Court of Appeal, in his judgment in the appeal in the Palaceanne case reviewed the UK and Irish case law on the topic. One of those cases was Conneran & Anor v Corbett & Sons Ltd & Anor [2004] IEHC 389 where Laffoy, J approved and adopted paragraph 6.059 of Wylie on Irish Land Law, 3rd edition, which said:
"As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee, which takes the form of restrictions enforceable against the grantor’s land.”
In the Palaceanne case, Ryan, P held - “In the events that have happened in this case, I think that it is irresistible that a right arises by necessity or by implication of law or under the rule in Wheeldon v Burrows.” - The Rule in Wheeldon v Burrows, which had been the subject of some academic criticism, was abolished on 1 December 2009 and replaced by subsection (2) of Section 40 of the Land & Conveyancing Law Reform Act 2009. Section 40 is very clear. The question is whether that subsection would apply retrospectively to subdivisions that took place many years before. The wording of Section 40 is as follows:
“40.—(1) The rule known as the Rule in Wheeldon v. Burrows is abolished and replaced by subsection (2).
(2) Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which —
is necessary to the reasonable enjoyment of the part disposed of, and
was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the disposition took effect as being included in it.
(3) This section does not otherwise affect —
(a) easements arising by implication as easements of necessity or in order to give effect to the common intention of the parties to the disposition,
(b) the operation of the doctrine of non-derogation from grant.” - Since 1 December 2009, the Rule in Wheeldon v Burrows has been abolished, so the committee has had to consider what the net effect of this change is. Based on the presumption that a statute is not retrospective, the committee takes the view that section 40 operates only in respect of transactions entered into since 1 December 2009. The committee is of the view that the provisions of section 40 will apply to all situations where implied easements arose from a deed entered into after 1 December 2009.
- The committee takes the view, in the case of the example raised by this query, that easements would be implied at common law by the doctrine of nonderogation from grant under the Rule in Wheeldon v Burrows, or as easements of common intention where the deed dates from prior to 1 December 2009, with section 40 replacing the Rule in Wheeldon v Burrows as an available method of implication where the deed was executed after that date. This should also apply in all situations, such as those detailed in the paragraph (2) above, where an easement arose by implication prior to the 2009 act. Implied easements run with the land, originally by virtue of section 6 of the Conveyancing Act 1881 and, after 1 December 2009, by virtue of section 71 of the 2009 act, unless a contrary intention was expressed in the deed.
- Implied or deemed easements are not capable of registration under the 2009 act. If someone was forced to seek a court order to confirm an implied or deemed easement, they may be able to register the court order confirming the easement if they wished.
- The committee is of the opinion that it would be reasonable for a solicitor to presume, in the example given in the query at paragraph (1) above, that implied easements arose from the deeds of sale of each house. Similarly, if houses in a housing estate are sold without grants of easement for drainage or with inadequate grants of easements, it would be reasonable to presume that implied easements arose in favour of each house upon its sale, unless there is something in the deed of sale that is inconsistent with such easements being implied.
- However, in the case of one-off properties, a solicitor needs to exercise more caution, and it would be prudent to seek an explanation for the circumstances that would justify the implication that an easement was intended, and for this to be backed up with a statutory declaration.
- This practice note only deals with implied or deemed easements which must not be confused with easements arising by prescription, and a separate practice note on prescriptive easements will issue shortly.
