Implied rights of way – not to be relied upon
A recent High Court case acts as a reminder that you should clearly outline rights of way in any transfers and leases of a property.
Failure to do so may mean you find yourself in the realm of implied easements where problems tend to arise, as there is conflicting authority on how these are created and interpreted.
The case, Wood v Waddington, centred on a sporting estate which was sold in two parts. The claimant (X) had carried out extensive work to a livery yard on his part of the estate and claimed to have vehicular and equestrian rights of way over the second part of the estate, the defendant’s (Y) land. Y did not agree and blocked X’s access to these rights on the basis that they were rarely used and there were other rights of way available on different bridleways.
X argued the original transfer expressly granted the rights being used, that they were “enjoyed with” the land and, therefore, became easements by virtue of section 62 of the Law of Property Act 1925, and that the rights were implied into the transfer by case law.
First, the court found the original transfer referred to rights of a “continuous” nature and as a right of way cannot be continuous the transfer could not have granted any.
Secondly, it has been established that, for the purposes of section 62, a right has to have been enjoyed by the land originally conveyed, rather than as part of the common ownership of the original estate. The court held that this was not the position in this case.
Thirdly, the rights could not have been implied by case law because not only does that test require the rights to be continuous but also that they are necessary for the enjoyment of the land conveyed. This limb failed as well.
To prevent uncertainty, and to avoid being mired in the quagmire of implied easements, transfers and leases should expressly refer to any rights being granted or reserved.
To discuss rights of way and other easements that may be affecting your property please contact our agriculture & estates team.We're here to help