Unless it is excluded, section 62 of the Law of Property Act 1925 applies when land is divided up and one or more parts are sold. It was enacted to curtail conveyances, by making it unnecessary to list everything included, and conveys “all liberties, privileges, easements, rights and advantages” enjoyed with land. As a result, it passes rights exercised for the benefit of the part sold over the remaining land.
There are conflicting views about its application where land is in the same ownership and occupation. If the property has not been separately occupied, it may be difficult to say that rights have been exercised over one part for the benefit of another. So it could be argued that no such rights exist at all. However, P&S Platt Ltd v Crouch [2003] EWCA Civ 1110; [2003] PLSCS 192 is authority for the proposition that section 62 applies to rights that are continuous and apparent where land was in common ownership and occupation.
Wood and anr v Waddington [2015] [2015] EWCA Civ 538; [2015] PLSCS 157 provides up-to-date guidance on this and other points. The case concerned land that used to be in the same ownership and occupation until it was divided up and sold. Some years later, the purchaser of one of the parts claimed rights of way over tracks across his neighbour’s property for the benefit of the livery business that he had established on his own land. Were the rights expressly granted by the transfer? If not, did section 62 apply? The Court of Appeal decided that it did.
Express rights
The land was sold “subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the property”. The owner of the livery yard tried to persuade the court that this included the use of the tracks, but the court rejected the claim on the ground that a “continuous” easement is one that is enjoyed without requiring any personal activity. Rights to light, drainage or support are continuous easements. However, rights of way, which are not exercised continuously, are not.
It might be thought that this would have been enough to scupper any claim under section 62 as well because, if the section applies to land that was previously in common ownership and occupation, it applies to rights that are “continuous and apparent”. Far from it.
Section 62
The court stated that there is no absolute bar to the operation of section 62 where land has been in common ownership and occupation. Diversity of occupation helps to distinguish between cases where a landowner is simply making use of his land as he pleases, and cases in which a use is in the nature of an easement or quasi-easement enjoyed for the benefit of a particular part of the land. However, diversity of occupation is not essential and section 62 can operate to transfer easements where the enjoyment of the rights claimed was continuous and apparent at the date of sale.
Lord Justice Lewison explained that the word “continuous” has become “all but superfluous” when used in the phrase “continuous and apparent” in connection with claims under the rule in Wheeldon v Burrows (1879) 12 ChD 31 and claims under section 62.
Furthermore, there was no need to show that the easement claimed was necessary for the reasonable enjoyment of the land (as is required under Wheeldon v Burrows). What was important was the extent to which there were visible signs of a track or road, and there were sufficient signs on the ground for the claimed routes to have been continuous and apparent in this case.
Section 62 is not applicable unless the rights claimed are enjoyed with the land. This means that they must have been in use for a reasonable period before the land was sold. So the court went on to consider when, and how often, the tracks were used and ruled that use approximately once a month sufficed for the purposes of section 62.
The section applies unless a contrary intention is expressed: section 62(4). The owner of the tracks argued that the transfers had specifically identified the rights of way that were granted and reserved, leaving no room for the application of section 62. However, the courts have always interpreted the requirement for a contrary intention strictly, and Lewison LJ confirmed that clear words are needed to exclude the provision.
The court rejected the argument that the use of the tracks exceeded the scope of the rights granted. McAdams Homes Ltd v Robinson [2004] EWCA Civ 214; [2004] 3 EGLR 93 confirms that there must be a radical change in the character or a change in the identity of the dominant land, coupled with a substantial increase in use, to constitute use in excess of the rights granted. There were stables on the land at the time of the sale and, although the equestrian use had intensified following the establishment of the livery business, there had been not been any change in the character or identity of the land in question.
Reform overdue
The Law Commission has described section 62 as a trap for the unwary because parties do not understand when and how it operates, and often fail to exclude it. This case illustrates that perfectly and underlines the need for comprehensive reform of the law, which is long overdue.
