Implied easement under the rule in Wheeldon v Burrows on a sale of part
Freya owned two adjoining plots in Suffolk, England: Plot 1, with a house and a garage at the rear, and Plot 2, a paddock. Plot 1 has a pedestrian gate onto the street at the front but no vehicle access except along a surfaced driveway across Plot 2, which Freya laid out and used daily to drive to the garage. In 2026 Freya sold Plot 1 to Gus, keeping Plot 2. The transfer says nothing about the driveway. Freya now wants to stop Gus using it.
Which of the following best describes whether Gus has a right to use the driveway?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: Yes, because a continuous and apparent right, necessary for reasonable enjoyment of Plot 1 and used by Freya for it at the time of sale, is impliedly granted.
THE RULE TO REMEMBER
On a sale of part, the rule in Wheeldon v Burrows implies the grant of continuous and apparent rights, necessary for reasonable enjoyment, that the common owner used for the part sold.
Implied easement under the rule in Wheeldon v Burrows on a sale of part
Under the rule in Wheeldon v Burrows (1879) 12 Ch D 31, as quoted by the Court of Appeal in Wood v Waddington [2015] EWCA Civ 538, on a grant of part of land the law implies a grant of such continuous and apparent easements, or such easements as are necessary to the reasonable enjoyment of the property conveyed, as have in fact been enjoyed during the unity of ownership. Lewison LJ noted that a made-up road is the clearest example of a right of way that is 'continuous and apparent'. Freya used the surfaced driveway across Plot 2 to reach the garage on Plot 1 while she owned both plots, and vehicular access to the garage is necessary for the reasonable enjoyment of Plot 1. On the sale of Plot 1, a right of way over the driveway is therefore impliedly granted to Gus. The test is not strict necessity, so the pedestrian gate does not defeat it, and an implied easement does not need registration to be legal.
Why A is wrong: That states the test for an easement of necessity; Wheeldon v Burrows needs only necessity for reasonable enjoyment.
Why B is wrong: Easements may also be implied, for example under Wheeldon v Burrows or s.62 LPA 1925.
Why C is wrong: Prescription is unnecessary because an easement was implied into the transfer on the sale.
Why E is wrong: Only express grants of legal easements over registered land must be completed by registration; implied easements take effect at law without it.
A little more practice done.
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