A critical evaluation of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 – Has it been a positive development for property law in England and Wales?

To answer the question set out above, it is this author’s view that the rule to have been derived from the decision in Wheeldon v. Burrows (1879) 12 Ch D 3 has proved beneficial with regard to the application of property law in England and Wales to the specific issue of the sale of part of a given individual’s land. The reason for this is that the rule to have been derived from this case served to mean that, regardless of whether it was legal or equitable, it was possible to change a quasi-easement into a full easement via a grant but not to reserve it as such. To illustrate, Justice Thesiger recognised in Wheeldon v. Burrows (1879) 12 Ch D 3, p.49 that “[i]f the grantor intends to reserve any right over the tenement granted, it is [their] duty to reserve it expressly in the grant”. This is considered to be a particularly important point because the easement in question has not been expressly granted: instead, it is considered to have been implied into the sale of the land based upon how the sale of property came into being because of the circumstances surrounding the sale.

For the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 to apply, three prerequisites need to be fulfilled in the circumstances of a given case: (a) there had to be a quasi-easement (i.e. a practice that would amount to an easement if part of a property was in either separate ownership or occupation) in place that was both enjoyed and used by the seller before the transfer of land for the benefit of the part transferred; (b) the quasi-easement had to be both ‘continuous and apparent’; and (c) the quasi-easement needed to be shown to be “necessary for the reasonable enjoyment of the [aforementioned] transferred part of the land”. However, an easement will not be implied by applying the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 if, when a conveyance takes place, its operation is excluded by the parties that are involved in a given instance.

Reflecting upon requirement (b) for the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 to apply, the need for a quasi-easement to be both “continuous and apparent” has actually been the subject of reinterpreted by the judiciary through the decisions of the courts. To illustrate, it was held by Justice Maugham in Borman v. Griffith [1930] 1 Ch. 493 that a quasi-easement did not actually have to be “continuous” for the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 to be applied but does need to be “apparent” by being either “obvious” or “visible” in the circumstances. As for the matter of requirement (c) for the aforementioned rule to apply, the easement in question does NOT need to be absolutely essential for land’s reasonable enjoyment: it just needs to be “necessary for reasonable enjoyment” (see Wheeler v. JJ Saunders [1994] EWCA Civ 3).

To determine whether the application of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 has proved to be beneficial with regard to the application of property law in England and Wales, it is also important to consider the application of the Law of Property Act 1925 (LPA 1925) at section 62(1) in such circumstances. This is because it is understood that this section of the Act specifically provides that a transfer of land in the circumstances of a given case will include AND operate so as to then also convey –

“all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof” (LPA 1925 at section 62).

On this basis, there is a need to consider when a benefit that is reiterated by section 62 of the LPA 1925 is found to have an easement’s specific content requirements in keeping with the decision of the court in Re Ellenborough Park [1955] 3 All ER 667. This is because the judgement of the then Master of the Rolls, Lord Evershed provides that –

“(1) There must be a dominant and a servient tenement [in the circumstances -see, by way of illustration, Ackroyd v. Smith (1850) 138 E.R. 68]; (2) an easement must ‘accommodate’ the dominant tenement [in practice – see, by way of illustration, Roe v. Siddons (1888) 22 Q.B.D. 224]; (3) dominant and servient owners must be different persons [that are clearly distinct – see, by way of illustration, Polo Woods Foundation v. Shelton-Agar [2009] EWHC 1361 (Ch) and Hill v. Tupper (1863) 159 E.R. 51]; and (4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant [that may potentially be made in a particular instance] (Re Ellenborough Park [1955] 3 All ER 667, p.669).

The last of Lord Evershed’s four points regarding the content of easements needs to be reflected upon further at this point. This is because the fact that “(4) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant” is actually considered to be an abbreviation of a number of other sub-rules that serve to limit what may amount to easements in a given case. Specifically, this means that easements should not: (i) simply amount to a right of recreation with neither benefit or utility (see, for example, Re Ellenborough Park [1955] 3 All ER 667); (ii) be too broadly or vaguely expressed (see, for example, Re Ellenborough Park [1955] 3 All ER 667); (iii) be inconsistent with the servient owner’s proprietorship or possession (compare the decisions in Miller v. Emcer Products [1956] Ch. 304 and Copeland v. Greenhalf [1952] Ch. 488); (d) benefit the dominant owner without their needing to act to be a positive easement (see, for example, Phipps v. Pears [1965] 1 QB 76); or (e) require the servient owner to do something, except for, for example, maintain a fence (see, for example, Jones v. Price [1965] 2 QB 618).

All of the above points are important with regard to the application of the LPA 1925 at section 62 in relation to easements and their content (McFarlane, et al., 2015). This is because the law to have developed assumes that the benefit is understood to be an easement in the sense that its recognition is provided for under the law (McFarlane, et al., 2015). The only way that this will not happen is if an easement is not found to have been established with the appropriate amount of formality (McFarlane, et al., 2015). Consequently, in the event that the benefit of an easement is effectively reiterated into a given transfer of property under the LPA 1925 at section 62, then that conveyance’s formality is assumed in the circumstances (McFarlane, et al., 2015). Therefore, it could be said that this understanding of the application of the aforementioned provision of the Act serves to repair this lack of formality that the law assumes was the only thing that stopped the benefit from being recognised as an easement in its own right (McFarlane, et al., 2015). This is considered to be important since it is only possible for easements to be granted, as opposed to reserved, under the LPA 1925 at section 62(1) that specifically states that “advantages and not obligations are reiterated into a transfer of land” in a given case.

Having set out what section 62(1) of the LPA 1925 states and its application, there is a need to consider the relationship of this provision with the rule in Wheeldon v. Burrows (1879) 12 Ch D 3. This is because there is considered to be a degree of similarity between the two rules. By way of illustration, the aforementioned section of the Act and the case provide that an easement is to be impliedly granted due to the fact that the land in question benefitted from an easement-like advantage before the particular transfer of land too place in the circumstances prior to conveyance the land benefited from an easement-shaped advantage. However, as this essay’s analysis has identified, the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 also requires the quasi-easement that exists in a given instance to be both “continuous and apparent” and a requirement for the transferred land to be reasonably enjoyed to move forwards.

With regard to the relationship between section 62(1) of the LPA 1925 and the rule in Wheeldon v. Burrows (1879) 12 Ch D 3, the Court of Appeal’s decision to have been reached in the case of Wood and Another v. Waddington [2015] EWCA Civ 538 also needs to be accounted for. Reflecting back upon how the remit of the aforementioned provision for the Act is distinguished from the rule in Wheeldon v. Burrows (1879) 12 Ch D 3, the distinction is founded upon the concepts of unity and diversity of occupation historically. Consequently, the courts that have had to deal with cases to have arisen since have provided for the application of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 to those instances where, before the sale of particular property, a given party both owned and occupied a given piece of land. Conversely, section 62(1) of the LPA 1925 was to be applied to those instances where, before property’s sale, a given party owned two plots of land, but only actually occupied one of those two pieces of land.

On this basis, due to the distinction to have been set out between the application of 62(1) of the LPA 1925 and the rule in Wheeldon v. Burrows (1879) 12 Ch D 3, it is pertinent to consider the decision Wood v. Waddington with a view to collapsing the distinction of unity and diversity of occupation to have been identified in the preceding paragraph of this essay. Specifically, Lord Justice Lewison recognised in his judgement in this case that “[a]lthough s.62 usually applies in cases of diversity of occupation, there is no bar to its application in cases of unity of occupation” in practice (Wood and Another v. Waddington [2015] EWCA Civ 538, paragraph 25). Therefore, it is possible for section 62(1) of the LPA 1925 to be applied in cases of unity of occupation so long as the benefit of a quasi-easement is both “continuous and apparent” in keeping with the remit of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 that is the subject of this essay’s analysis so as to mean that the very existence of the rule would seem to be jeopardised.

In view of the operation of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3, it is also pertinent to consider the concept of implied easements and whether they are legal or equitable in practice. This is because, in the event that an easement is implied in the context of a given transfer of land, the formality of the completion of this transfer is considered to be assumed. To illustrate, section 52(1) of the LPA 1925 provides that “[a]ll conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed”. The application of this provision of the Act effectively means that a deed is considered to be an absolute necessity for the purpose of conveying either a legal freehold or leasehold that is found to be in excess of three years. Therefore, this means that an easement that is implied into this kind of property transfer is automatically considered to have been established by way of a deed.

It is also to be noted that implied easements are considered to be important in the context of the application of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 because, unlike those easements to have been expressly granted, there is a need to understand that implied easements do not actually have to be registered so that they can be deemed to be legal. By way of illustration, section 27(d) of the Land Registration Act 2002 is considered to be limited to the “express grant or reservation” of an easement in a given instance. Conversely, an easement will only be considered to be equitable in a specific case in the event that the sale or lease of property is completed by way of a formally written contract (see, for example, Parker v. Taswell (1858) 2 De Gex & Jones 559 and Borman v. Griffith [1930] 1 Ch 493).

In view of the application of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3, there is also a need to account for the remit of the principle of easements arising via prescription. Regardless of whether this is achieved by way of the application of the common law, the doctrine of lost modern grant or under the provisions of the Prescription Act 1832, easements can arise on the basis of it being exercised on a continuous and long-term basis of at least 20 years. Additionally, it is only possible for easements to arise by prescription in favour of a given freehold estate in practice (see, for example, Kilgour v. Gaddes [1904] 1 KB 457). Nonetheless, it is also to be understood that underpinning the recognition of the concept of prescription is the view that the particular easement has been utilised with the agreement of the owner of the servient tenement (see, for example, D’Alton v. Angus (1881) 6 App Cas 740). In addition, there is also a need for the easement that is created in such circumstances to be exercised without – (a) secrecy; (b) force; and (c) permission (see, for example, Winterburn v. Bennett [2016] EWCA Civ 482)

In conclusion, based upon the analysis undertaken in this essay, the application of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 has proved to be a very positive development for property law in England and Wales. This is because the rule in this case served to mean that, regardless of whether it was legal or equitable, it was possible to change a quasi-easement into a full easement via a grant but not to reserve it as such. However, there are also prerequisites to be fulfilled in a given case AND it is also important to appreciate that the remit of the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 needs to be read in keeping with section 62(1) of the LPA 1925 and the decision in Wood and Another v. Waddington [2015] EWCA Civ 538 that has called the rule’s validity into question. Moreover, even where it is accepted that the rule in Wheeldon v. Burrows (1879) 12 Ch D 3 should still apply, this rule has acted as an effective ‘gateway’ to further provisions of law also must be read in keeping with law related to implied easements and the creation of easements by prescription.

Bibliography

Borman v. Griffith [1930] 1 Ch 493

Copeland v. Greenhalf [1952] Ch. 488

D’Alton v. Angus (1881) 6 App Cas 740

Jones v. Price [1965] 2 QB 618

Kilgour v. Gaddes [1904] 1 KB 457

Land Registration Act 2002

Law of Property Act 1925

McFarlane B, Hopkins N, and Nield S, (2015) Land Law: Text, Cases and Materials. Oxford: 3rd Edition, Oxford University Press

Miller v. Emcer Products [1956] Ch. 304

Parker v. Taswell (1858) 2 De Gex & Jones 559

Phipps v. Pears [1965] 1 QB 76

Prescription Act 1832

Re Ellenborough Park [1955] 3 All ER 667

Wheeldon v. Burrows (1879) 12 Ch D 3

Wheeler v. JJ Saunders [1994] EWCA Civ 3

Winterburn v. Bennett [2016] EWCA Civ 482

Wood and Another v. Waddington [2015] EWCA Civ 538