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” with the land sold.
One controversial question about the section is whether it operates where land was previously in common ownership and occupation. The Law Commission’s report on Easements, Covenants and Profits a Prendre (Law Com 186) suggests that there must have been prior diversity of occupation, unless the rights are continuous and apparent or the rights concerned are rights to light.
However, Wood v Waddington [2014] EWHC 1358 (Ch); [2014] PLSCS 137 indicates that the law may be wider than this. 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.
In addition to specific rights granted in the transfers, the properties were sold “subject to and with the benefit of all liberties privileges and advantages of a continuous nature” used or enjoyed with the land. The claimant argued that the rights of way that he was claiming were included in the transfer to him as a result of these provisions. However, the judge took the view that the detailed access provisions in the transfers left no room for the general provisions to operate in relation to rights of access. In addition, the transfers referred to rights “of a continuous nature” and a right of way is not a continuous right.
Did section 62 apply? The judge analysed the authorities and decided that there is no absolute rule that section 62 does not operate to create rights of way if there was no prior diversity of occupation. In the judge’s view, section 62 can apply if the advantage claimed was apparent and was enjoyed for a reasonable period of time “with the land conveyed”, rather than having been enjoyed simply because the parcels were in common ownership. For example, it would be possible to uphold a claim under section 62 to rights of way over a driveway that communicates with and serves the land conveyed and passes over land retained by the seller.
The judge explained that the authorities required him to approach the question of what rights were included in the transfer as if the words of section 62 were actually set out in the transfer. Consequently, he felt unable to construe the specific access rights granted, or the general rights in the transfers (which overlapped with, but were narrower than, section 62), as demonstrating an intention to exclude the operation of the section (even though he had reached a different conclusion when considering the effect of the specific access rights granted on the general provisions in the transfer).
However, section 62 was not engaged. The tracks had not been used sufficiently frequently before the sale for the benefit of the land conveyed and it was far from apparent that they had served the land that was sold to the claimant. This was a classic case of land being used by a common owner, but not so as to make one part of the land subject to a potential burden for the benefit of another part of it.
Allyson Colby is a property law consultant
