easements. Legal or Equitable?

Hello everyone,

I have a query as follows..

My question is as to whether implied easements (necessity, common intention and via wheeldon and burrows) are equitable or legal. I have read that they can be both, however I was under the impression that legal easements can only be created by statute, prescription or deed. How would an easement created via wheeldon and burrows for example be a legal interest? meaning that it could be transferred as an overriding interest in an conveyance where the servient land is registered.
Further to this if a licence was to be made an easement upon conveyance under S.62. Would this be created by statute, therefore a legal interest?

Any help would be much appreciated!

Reply 1

vnupe

I think you worked out an answer to your first question... But as to your second, think of the cases of King v David and Ashburn Astalt (sp.) v Arnold. The if a personal right like a licence (say a person has a contractual licence) to live/work in a building and a conveyance has occurred but the old owner has made the licence a condition of the sale or conveyance and the new owner has agreed to the licence in the sale then they are estopped (according to Ashburn) from reneging on the deal.
Hope this helps

Reply 2

gwen_m

Implied easements are created by implication into a conveyance (of some other right). If implied into a legal conveyance (i.e. deed + registration), they are legal. If implied into an equitable conveyance (written contract taking effect in equity), they are equitable. If legal, they can be overriding under sch 3 LRA, para 3.

Reply 3

mja

Original post by gwen_m

This. And NB that s62 only works to imply a grant into a conveyance, not a contract - whereas other modes (Wheeldon, necessity, common intention) can work with a contract too.