Facts
- Mr. Kent and Mr. Kavanagh each owned adjoining properties that were previously part of a single plot under shared ownership.
- Before the division, a drainage system served both properties.
- A dispute emerged when Mr. Kavanagh undertook construction on his land, allegedly interfering with the drainage affecting Mr. Kent’s property.
- Mr. Kent contended that an implied easement existed in his favour relating to the drainage system.
- The history of ownership and use of the drainage system was central to the dispute.
Issues
- Whether an implied easement arose for Mr. Kent in respect of the drainage system following the division of formerly jointly owned land.
- Whether continuous and apparent use of a right during shared ownership is sufficient to create an implied easement post-division.
- How the previous shared ownership of the land affects the requirement for the existence of an easement.
Decision
- The court held that no implied easement could arise for Mr. Kent regarding the drainage system, as the properties had previously been under shared ownership.
- It found that rights exercised during shared ownership are part of the owner's general entitlements and not easements requiring legal creation.
- The court confirmed that the necessity condition is decisive; continuous and apparent use alone, even if present before division, does not create an easement after division where the land was previously jointly owned.
- The requirement for an easement could not be satisfied solely on the basis of prior use under shared ownership.
- Legal principles from Wheeldon v Burrows (1879) 12 Ch D 31 regarding implied easements were considered but not satisfied in this case.
Legal Principles
- An easement cannot exist while land is held under shared ownership because any rights exercised are mere incidents of general ownership, not legal easements.
- For an implied grant or reservation post-division, the requirement of necessity is a primary condition; continuous and apparent use is insufficient if the right arose under shared ownership.
- The criteria for implied grants—derived from Wheeldon v Burrows—require both continuous and apparent use and necessity, neither of which alone suffices where land was formerly in joint ownership.
- Practitioners must verify the ownership history and specific circumstances when handling implied easement claims, as prior use during shared ownership does not justify an easement claim after division.
Conclusion
Kent v Kavanagh establishes that implied easements cannot arise during shared ownership; the necessity requirement for implied grants or reservations must be met, and previous continuous and apparent use does not suffice if the right originated while the land was held jointly. Ownership history is essential when assessing easement claims.
