The previous owners of a house had an easement allowing them to use a drain that ran over their neighbour's property. When they sold this house to Israel he continued to use the drain. However, subsequent purchaser of the neighbouring house, Leith, did not receive notice of this easement, and claim that it should be disallowed. Israel, the owner of the easement, sued. He was unsuccessful at trial which he appealed.
- Do easements pass with a conveyance of land?
- Does it matter whether or not they are registered?
Appeal allowed, easement for drainage exists.
Street, writing for the court, states that it is clear from the Conveyancing And Law of Property Act that easements pass with a sale of land. Therefore, the easement continued for the Israel when he purchased the house. The only question is whether the Registry Act has altered this. If the easement was an implied grant, then it falls outside of the Registry Act and is still in force. However, express grants can be registered and therefore fall under the jurisdiction of the Act. The judge states that the Act does not alter the finding; Israel purchased the land and the right before Leith did, and being first in time is enough when it is not registered.
- Easements pass with the sale of land.
- It does not matter if an easement is not registered - as long as a party possesses it before another person purchases the lands that the easement affects, even if that second purchaser did so without notice, the easement will prevail.