The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was not capable of existing as an easement: ‘A further exception has been recognized in cases in which there could in the circumstances of the case have been no expectation that the enjoyment of the right could be other than temporary.’ The court summarised the Birmingham case: ‘Somebody took a lease of one of the houses at a time when an adjoining plot only had built upon it old buildings of less height than those contemplated by the scheme; but it was well known to everybody that the intention was, and the building scheme demanded, that this plot should be built upon to a greater height.’ He then quoted Cotton LJ and said ‘The learned Lord Justice, I think, meant no more than this, that it was knowledge common to both parties that the existing low building was going to be replaced by a higher one and, that being so, the fortuitous access of extra light to the lessee’s building while the scheme was being carried to completion could not be regarded as an enjoyment of light which would pass to the lessee a right to have it continued in the same degree.’
The court asked whether the right to use a coal shed could exist as an easement.
Jenkins LJ
[1949] 2 KB 727
Law of Property Act 1925 62
England and Wales
Citing:
Explained – Birmingham, Dudley and District Banking Co v Ross CA 1888
Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under . .
Cited by:
Approved – Hair v Gillman 2000
. .
Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Cited – Montrose Court Holdings Ltd and Another v Shamash and others CA 21-Feb-2006
Tenants challenging power of freeholders to impose parking regulations on occupiers of development. The landlord appealed.
Held: ‘the regulations in the present case – which limited the right to park to the parking of one vehicle at a time – . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Long v Tower Hamlets London Borough Council ChD 20-Mar-1996
The parties had agreed for a lease, and the tenant entered possession, but no formal lease was executed. The tenant stopped paying rent in 1977 or 1984. He now claimed rectification of the registers to show him as proprietor. The landlord argued . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 17 November 2021; Ref: scu.185829
