Ensuring easements are wide enough for future development

A recent case provides a reminder to ensure property easements are sufficient to permit future alteration or development of a property.

The recent case of Yeung v Potel & Summers is a reminder of the need to ensure that when purchasing or selling part of a property easements granted or reserved over adjoining property are sufficient to permit future alteration or development of the property as courts are unlikely to imply an extension to such easements.

When you purchase or sell part of a property easements will be granted for the benefit of the land sold, and reserved for the benefit of the land retained. It is important to consider all possible future uses, alterations or development of the property sold and the land retained when negotiating the rights and reservations so that all necessary easements are expressly granted as courts are generally unlikely to imply or extend rights.

In this case, which involved leasehold flats forming part of a building, the court was unwilling to imply an additional right to lay new conduits.

Here, the defendant (the owner of flat 3) wanted to carry out alterations to flat 3 including re-routing a gas pipe, which meant that the defendant needed access to flat 4 (the claimant’s flat). The rights granted in the lease of flat 3 included a right to enter other parts of the Building for the purpose of repairing cleansing maintaining and renewing sewer drains and watercourses cables or wires and laying down new sewers drains watercourse cables pipes and wires. However, the rights reserved in the lease of flat 4 only permitted the landlord and tenants of other flats in the building to enter flat 4 for the purpose of repairing cleansing maintaining or renewing drains sewers watercourses cables pipes and wires. It did not reserve a right to lay new conduits. Therefore the rights reserved over flat 4 were not as wide as the rights granted to flat 3.

The building works carried out by the defendant to flat 3 caused damage to flat 4 and disturbance to the claimants. The claimants sought an injunction to stop the works. The defendant counterclaimed seeking access to flat 4 to re-route the gas supply.

The defendants argued the rights granted in the lease of flat 3 and the rights reserved in the lease of flat 4 when read together gave the defendant a right of access to flat 4 to lay a new gas pipe in a different position within flat 3. As there was a mismatch between the rights granted and reserved in the two leases the question arose whether the words “or laying new” should be implied into the reservations clause. The defendants argued those words should be implied to overcome the mismatch in the rights and reservations and achieve what the parties must have intended.

That argument was rejected by the claimants as relying on the rule in Wheeldon v Burrows only easements of necessity should be implied.

The court decided that the additional words could not be implied in the reservations clause as it was not a matter of necessity. The leases worked without the addition of those words. The court concluded that the effect of the reservations clause permitted the landlord or other tenants to enter flat 4 for the purposes:

(a) Repairing cleaning or maintaining sewers drains watercourses cable pipes and wires

(b) Renewing sewers drains watercourses cables pipes and wires

“Renewing” pipes or wires meant substituting new pipes or wires as replacements for the pre-existing ones. It did not extend to laying new or additional pipes or wires of a different character to the existing ones.

This case highlights the need to firstly ensure easements for the supply of services and related conduits are drafted so they are wide enough to cover laying new conduits which might be required in the future and secondly to ensure rights granted are consistent with rights which have been reserved.

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