Introduction
The legal concept of an easement grants specific rights over another person's land. These rights often involve using the land for a defined purpose, such as access or drainage. Establishing an easement must follow specific legal criteria. One criterion, important in some contexts, concerns how shared ownership affects easement creation. Kent v Kavanagh [2007] Ch 1 examines this criterion regarding implied easements. This case clarifies when shared ownership may remove the requirement for an easement and gives clear instructions for property law practitioners.
The Facts of Kent v Kavanagh
Mr. Kent and Mr. Kavanagh owned adjacent properties, previously part of a single plot. Before division, a drainage system served both sections. The dispute arose when Mr. Kavanagh began construction on his portion, which Mr. Kent claimed interfered with drainage affecting his property. Mr. Kent argued for an implied easement.
The Issue of Implied Grant or Reservation
The court assessed whether an easement was created by implied grant to Mr. Kent or kept by the former shared owner. A key factor for implied grant or reservation is whether the easement is required for ordinary use of the property asserting the right. The judgment reviewed ‘quasi-easements’, rights used during shared ownership that could become easements after division.
The Relevance of Shared Ownership: Removing Need
The primary legal issue in Kent v Kavanagh was how shared ownership affects the requirement for an easement. The court stated that while land remains under shared ownership, an easement cannot apply. Rights over what later becomes the servient land form part of the owner’s general entitlements. Thus, the requirement for an easement—a primary condition for implied grant or reservation—cannot arise during shared ownership.
Wheeldon v Burrows and Continuous and Apparent Easements
The case cited Wheeldon v Burrows (1879) 12 Ch D 31, a key case on implied easements. Wheeldon v Burrows sets out criteria for implied grants, including continuous and apparent use. Kent v Kavanagh confirmed that even if a right was continuous and apparent during shared ownership, this alone does not create an easement post-division. The necessity condition remains decisive.
Applying the Rules to the Drainage System
Applying these principles to the drainage system, the court held the claimed easement could not be implied. As the properties were previously under shared ownership, no easement could have existed then. The drainage arrangement was part of the owner’s general entitlements. The requirement for an easement could not be shown based on pre-division use.
Practical Implications and Subsequent Cases
Kent v Kavanagh gives clear instructions for property law practitioners handling implied easements. It stresses verifying ownership history and specific details of the claimed right. The ruling confirms that prior use alone, even if continuous and apparent, cannot support an implied easement if the land was once shared. Later cases, such as Wood v Waddington [2014] EWCA Civ 272, have followed this approach, maintaining the focus on necessity in shared ownership disputes.
Beyond Kent v Kavanagh: Additional Factors in Implied Easements
While shared ownership is important, it is not the only factor in implied easement cases. Courts also consider elements like the purpose of the claimed right, property types, and transfer conditions. Each case depends on its facts and requires careful legal review.
Conclusion
Kent v Kavanagh clarifies property law by explaining how shared ownership affects implied easements. The ruling establishes that necessity is a basic condition for implied grant or reservation, which cannot exist during shared ownership. The case emphasizes verifying ownership history when assessing easement claims. Its principles, linked to earlier cases like Wheeldon v Burrows, give clear instructions for legal practitioners managing property rights. Reviewing shared ownership remains essential in evaluating easement claims.
