In the absence of clear words excluding its operation, section 62 of the Law of Property Act 1925 applies when land is divided into parts and one or more parts are sold. It operates to convey “all liberties, privileges, easements, rights, and advantages whatsoever” enjoyed with the land. One controversial question about the section is whether it operates where land was previously in common ownership and occupation.
Wood v Waddington [2015] EWCA Civ 538; [2015] PLSCS 157 provides us with up to date guidance on the law. The case concerned land that used to be in common ownership and occupation until it was parcelled up and sold. Some years later, the owner of one of the parcels claimed rights of way over tracks across his neighbour’s land for the benefit of the livery business that he had established on his own land. Did section 62 apply?
The Court of Appeal agreed that it did. Diversity of occupation helps to distinguish between cases where a landowner is simply making use of the whole of his land as he pleases, and cases where a particular use can be discerned as being in the nature of an easement or quasi-easement that is enjoyed for the benefit of a particular part of the land. However, there is no absolute bar to the operation of section 62 where land has been in common ownership.
The Court of Appeal relied, in particular, on the decision in Alford v Hannaford [2011] EWCA Civ 1099; [2011] PLSCS 236 in which the court held that, if there has not been diversity of occupation prior to the sale, section 62 can operate to grant easements if the exercise of the relevant rights was continuous and apparent at the date of the sale. A right of way is capable of being continuous and apparent for these purposes, especially – but not only – if the road in question has been made up: Borman v Griffith [1930] 1 Ch 493.
The court accepted that there were sufficient signs on the ground for the route to have been continuous and apparent on inspection – but to what extent was it used? Where there has been no use at all within a reasonable period preceding the date of the conveyance, section 62 cannot operate to create an easement: Nickerson v Barraclough [1981] Ch 426. However, the trial judge had found as a fact that the route had been used approximately once a month in the period immediately preceding the transfers, which was sufficient for the purposes of section 62.
The section applies only if and as far as a contrary intention is not expressed in the conveyance. The owner of the tracks argued that section 62 was not applicable because the transfers had specifically and comprehensively identified the rights of way granted and reserved. However, an express rebuttal is needed to exclude section 62: Commission for the New Towns v JJ Gallagher Ltd [2002] EWHC 2668 (Ch).
Finally, the court rejected the landowner’s argument that any rights to use the tracks were limited to use for domestic purposes only. There were already stables on the dominant land at the time of the sale and, although the use had intensified as a result of the establishment of the livery business, the character and identity of the dominant land had not undergone any radical change.
Allyson Colby is a property law consultant
