BREEAM International New Construction Assessor

Correct: Under the rule in Wheeldon v Burrows, when a person transfers part of their land to another, the transfer includes all ‘quasi-easements’ that are continuous and apparent, and necessary for the reasonable enjoyment of the property. This rule transforms rights previously exercised by the owner over their own land into implied easements for the benefit of the grantee.

Incorrect: Express reservation is the opposite of an implied arrangement, as it requires specific wording in a deed to retain a right. The payment of a license fee suggests permissive use, which generally prevents the creation of an easement by prescription or implication as it acknowledges the owner’s superior title. A Section 146 notice is a procedure used for the forfeiture of a lease due to a breach of covenant and is irrelevant to the establishment of implied easements.

Takeaway: For an implied easement to be established under the rule in Wheeldon v Burrows, the right must be continuous, apparent, and necessary for the reasonable enjoyment of the land.

Correct: An easement of necessity is implied by law only when a property is subdivided in such a way that a plot is left completely landlocked, meaning it has no legal means of access except over the land retained by the grantor. This is based on the legal presumption that the parties did not intend to render the land unusable. It requires a high threshold of ‘absolute necessity’ rather than mere convenience.

Incorrect: The rule in Wheeldon v Burrows applies to quasi-easements that are continuous, apparent, and necessary for the ‘reasonable enjoyment’ of the land, which is a broader and less stringent standard than absolute necessity. Section 62 of the Law of Property Act 1925 typically functions to ‘word-save’ and can upgrade existing precarious rights or licenses into easements upon conveyance, but it does not create an easement of necessity where no prior right existed. Prescription is incorrect because it requires a minimum of 20 years of continuous use, whereas this scenario only involves an 18-month timeframe.

Takeaway: An implied easement of necessity arises only when land is rendered physically and legally landlocked upon severance, based on the presumed intent that the land must remain usable.

Correct: An easement of necessity arises when a grantor conveys a piece of land that is landlocked, meaning it has no legal means of access except over the land retained by the grantor. In such cases, the law implies an easement to ensure the land is not rendered useless. This is based on the presumed intention of the parties and the public policy that land should be capable of being used and developed.

Incorrect: Easements by prescription require a minimum of twenty years of continuous use ‘as of right’ and cannot be claimed immediately upon a land transfer. Restrictive covenants are negative in nature, preventing a landowner from doing something on their land, whereas a right of way is an affirmative easement. Proprietary estoppel requires a specific promise or representation by the landowner and detrimental reliance by the claimant, which is a different legal mechanism than the automatic implication of necessity upon the severance of land.

Takeaway: An implied easement of necessity ensures that landlocked property remains accessible by operation of law when a common owner severs the land without providing express access rights.

Correct: The most effective control involves both physical and legal due diligence. Implied easements often arise under Section 62 of the Law of Property Act 1925 or the rule in Wheeldon v Burrows when land is subdivided. A physical inspection identifies ‘quasi-easements’ (signs of use that could become legal easements upon sale), while explicitly excluding Section 62 in the transfer deed prevents the automatic conversion of these informal uses into permanent legal rights that would encumber the title.

Incorrect: Relying on the Title Register or standard enquiries is insufficient because implied rights are, by their nature, often unrecorded. Indemnity insurance is a method of risk transfer rather than a control that reduces the likelihood of the risk occurring, and it may not prevent an injunction that halts development. Statutory declarations are useful evidence but do not provide the same legal certainty as a physical inspection combined with specific contractual exclusions, as they are subject to the declarant’s limited knowledge or potential bias.

Takeaway: To mitigate the risk of implied easements, surveyors must combine physical site analysis of ‘apparent’ uses with precise legal drafting to exclude statutory provisions that automatically create rights upon conveyance.

Correct: The rule in Wheeldon v Burrows is a cornerstone of land law regarding implied easements. When a landowner subdivides their land and sells a portion, any ‘quasi-easements’ (rights the owner exercised over their own land) that are continuous, apparent, and necessary for the reasonable enjoyment of the sold portion are impliedly granted to the purchaser. This is a critical risk factor in property audits because these rights are legally enforceable despite not being explicitly recorded in the transfer deed or the initial title register.

Incorrect: The doctrine of Prescription is incorrect as it requires a 20-year period of use and is not specifically triggered by the act of severance. The Mirror Principle is a conceptual goal of land registration, but it is subject to ‘overriding interests’ and implied rights which do not appear on the register. Section 52 of the Law of Property Act 1925 requires a deed for express grants, but it does not prevent the operation of law from creating implied easements, which are a recognized exception to the formal deed requirement.

Takeaway: Upon the severance of land, the rule in Wheeldon v Burrows can transform undocumented quasi-easements into legally binding implied easements if they are continuous, apparent, and necessary for the property’s enjoyment.

Correct: The rule in Wheeldon v Burrows provides that upon the severance of land, the grantee will receive all those continuous and apparent easements (quasi-easements) which are necessary to the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. Therefore, a surveyor must physically inspect the land for signs of use (apparent) and check the history of when the land was split (severance) to confirm these conditions were met.

Incorrect: The absence of restrictive covenants does not create positive rights or easements; it merely indicates a lack of specific prohibitions. Verifying twenty years of use refers to easements by prescription under the Prescription Act 1832, which is a different legal mechanism than an implied grant at the point of severance. A statutory declaration regarding informal arrangements is a matter of disclosure but does not extinguish an implied easement that has already been created by operation of law at the time the land was originally divided.

Takeaway: Implied easements under the rule in Wheeldon v Burrows require the right to be continuous, apparent, and necessary for the reasonable enjoyment of the property at the specific time of land severance.

Correct: The correct approach relies on the rule in Wheeldon v Burrows and the principle of non-derogation from grant. When land is subdivided, the law implies the grant of all continuous and apparent easements that are necessary to the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. In this scenario, the drainage is essential and has been used continuously, making it an implied understanding of the transfer.

Incorrect: Requiring a twenty-year prescriptive period is incorrect because implied easements at the point of sale (quasi-easements) do not require the same statutory timeframe as easements by prescription. The caveat emptor principle, while generally applicable to the physical state of the property, does not override the legal doctrine of implied grants or necessity. Restrictive covenants are used to limit the use of land, not to create or validate the transfer of positive rights like drainage access, and there is no statutory requirement to convert informal arrangements into covenants for a transfer to be valid.

Takeaway: Implied understandings in land transfers ensure that essential rights and quasi-easements necessary for the reasonable enjoyment of a property pass to the transferee even in the absence of express wording in the deed.

Correct: The rule in Wheeldon v Burrows is the primary mechanism for implying easements upon the severance of land. It states that when a landowner sells part of their land, the grant includes all ‘quasi-easements’ (rights used by the owner over their own land) that are continuous and apparent, and necessary for the reasonable enjoyment of the part granted. Since the road was used daily for heavy goods vehicles prior to the sale and the unit is now landlocked for such vehicles, these criteria are met.

Incorrect: Easement of Necessity is incorrect because it requires the land to be absolutely unusable without the right, rather than just more costly or inconvenient; Wheeldon v Burrows has a lower threshold of ‘reasonable enjoyment.’ Caveat Emptor is a general principle of ‘buyer beware’ but does not prevent the operation of law regarding implied grants on severance. The Prescription Act 1832 is incorrect because prescription requires 20 years of use by one owner against another; a landowner cannot create a prescriptive right against themselves prior to the land being divided.

Takeaway: The rule in Wheeldon v Burrows implies easements for rights that were apparent and necessary for the reasonable enjoyment of land at the moment it was severed from a larger holding.

Correct: The rule in Wheeldon v Burrows states that on the grant of part of a land, the grantee will receive all those continuous and apparent easements (quasi-easements) which are necessary to the reasonable enjoyment of the property granted and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. This does not require absolute necessity, but rather that the right is necessary for the ‘reasonable enjoyment’ of the land and is visible or obvious upon inspection.

Incorrect: The requirement for the land to be otherwise completely inaccessible describes an easement of necessity, which is a distinct and narrower category of implied easement. Verbal agreements do not satisfy the requirements for the rule in Wheeldon v Burrows, as the rule focuses on the physical state and usage of the land at the time of severance. A twelve-year period of use relates to the limitation period for adverse possession or potentially prescription (which usually requires 20 years), rather than the immediate implication of an easement upon the subdivision of land.

Takeaway: The rule in Wheeldon v Burrows implies easements upon the subdivision of land if the rights were continuous, apparent, and necessary for the reasonable enjoyment of the granted plot.