Neighbouring properties — Leasehold interest — Right of way — Leaseholders acquiring freehold interests on enfranchisement — Whether easements passing with conveyance of freehold — Whether rights binding leaseholder continuing after conveyance — Appeal dismissed
The appellants and the respondents owned and occupied two neighbouring houses. The properties had originally been held under leasehold but, in 1976, the freehold interests were acquired on enfranchisement. A dispute arose in respect of a path that ran between the properties and gave access from a road to their back gardens. It was common ground that the boundary between the properties fell along the mid-line of the path. The county court held that the respondents were entitled to a right of way over the half of the path that they did not own.
On appeal, questions arose as to whether the rule in Wheeldon v Burrows (1879) 12 ChD 31 could apply: (i) on a conveyance made on enfranchisement under the Leasehold Reform Act 1967; and (ii) to a conveyance by a landlord of the freehold to its tenant so as to convert into an easement a right enjoyed by the tenant over the land of another tenant of the same landlord where: (a) there was no evidence of the landlord’s consent to the exercise of that right; or (b) it had not been shown that the right was being exercised at the time at which the relevant conveyance was made.
The rule in Wheeldon involved two propositions. The first was that where a landowner granted part of its land to another party, the landowner had to pass to the grantee all those easements that were necessary for the reasonable enjoyment of the part granted. The second proposition was that if the grantor intended to reserve any right over the land granted, it had a duty to reserve it expressly in the grant.
Held: The appeal was dismissed.
(1) The rule in Wheeldon was confined to cases where land formerly in common ownership ceased to be owned by the same person. The first proposition did not apply to a conveyance that had been executed to give effect to the obligations under section 8 of the 1967 Act, which obliged the landlord to convey to the tenant the house and premises subject to the tenancy and to the tenant’s incumbrances. What, if any, easements passed to the tenant under the conveyance of the freehold (in the absence of an express grant to give effect to section 10(3)(a) of the 1967 Act) depended upon the operation of section 62 of the Law of Property Act 1925, supplemented by section 10(2)(i) of the 1967 Act, if necessary. The second proposition was limited by the need to construe the conveyance to give effect to the common intention of the parties that the estate conveyed was an estate in fee simple subject to tenant’s incumbrances and by section 10(2)(ii) of the 1967 Act: Wheeldon considered.
(2) Section 10(1) of the 1967 Act made it clear that the conveyance could not exclude or restrict section 62 of the 1925 Act unless the tenant gave its express consent. Thus, the section operated to convey, with the freehold, easements, liberties, rights and privileges demised with the land conveyed, limited only by the fact that section 62 did not give the tenant any better title than the landlord could have expressly conveyed. Subject to that limitation, any right enjoyed by the tenant under its lease was converted into a like right, enjoyed with the newly conveyed freehold.
Furthermore, any right that bound the tenant would continue after it had become a freeholder. The benefit of the rights reserved would be vested in the former freeholder and, on any subsequent conveyance, the rights reserved to that freeholder could be conveyed to a new purchaser by operation of section 62 of the 1925 Act. Therefore, it did not matter which of the two adjoining leasehold properties had been enfranchised first since both enfranchising tenants would continue to be bound by, or enjoy, the same rights as freeholders.
Charles Harpum (instructed by Skelly & Corsellis) appeared for the appellants; David Holland (instructed by Lionel J Lewis & Co) appeared for the respondents.
Eileen O’Grady, barrister
