Land registration: what's new in 2002?

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(1879) LR 12ch d 31. The facts of this case are no longer particular well-known -- they concern whether an easement of light arose in favour of a workshop when the adjacent land was severed and passed into different ownership. What remains current is the rule stated by Thesiger LJ. The rule as generally interpreted is this: if a part of a larger piece of land is sold, then the purchaser obtains as easements any rights over the vendor's land that were exercised as quasi-easements before sale, and are necessary for reasonable enjoyment of the land. The rule frequently arises in relation to an easement of access. However, there is some ambiguity in the wording, which has caused problems. The exact words of the judgement are ...there will pass to the grantee all continuous and apparent easements .. or, in other words, all those easements which are necessary to the reasonable enjoyment.... The problem is that Thesiger LJ expresses the notion that easements (quasi-easements) are necessary, and the notion that they are 'continuous and apparent' as if they were the same thing. Normally they are; in most cases when an easement is 'necessary' it will also be 'continuous and apparent'. Difficulties arise when these two tests do not produce the same results.

The rule in Wheeldon v Burrows has similar consequences to the statutory provision in s.62 of the Lpa (1925).

Land and Property Law