Published: Fri, 12 Oct 2018
Peckham v Ellison (2000) 79 P & CR 276
Easements and implied reservations
This case dealt with two neighbouring terrace council houses built in the 1940s. Each house was let out by the Council to tenants. Since the houses were built, the tenants at number 16 had relied on a right of way (which they had not specifically been allocated) to go through number 15s land in order to get to number 16s back door. Other tenants in the terrace (and presumably visitors) also went through the land of number 15 in order to reach the back door of number 16. Both houses were purchased by their respective tenants in the 1980s. The first house to be sold to its tenant was number 15; there was no express reservation included during the sale which provided for a right of way over the path in question allowing pedestrian access to the back door of number 16.
The issue for the court to consider in this case was, given that no express reservation was made for the right of way, whether it was possible for an implied reservation to exist.
The court accepted that in the current case, it could be accepted than an implied reservation of an easement was made, but observed that this is a rare and exceptional case. The court’s judgement was motivated by an observation that there existed a common intention to reserve a right of way. Cazalet J also observed that easements would be much more easily implied in favour of transferees of land rather than in favour of transferors.
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