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The complexities of implied easements unravelled

22 March 2016

When a landowner sells part of his land the common law is prepared to imply easements in favour of the seller and the buyer in certain circumstances, with the court usually favouring the buyer.

However, whenever a transaction involves the sale of part of a property, the parties should always make clear provisions for agreed rights and reservations (which are intended to benefit the land being sold and that being retained), and to limit or exclude the effect of both common and statute law.

Wood v Waddington

In Wood v Waddington, the Court of Appeal considered whether rights of way had either been expressly granted or had passed under section 62 of the Law of Property Act 1925.

Section 62 provides that a conveyance of land is deemed to include all ways, watercourses, privileges, easements, rights and advantages which at that time are enjoyed with all or part of the land. Therefore, when part of a property is conveyed section 62 can operate to set up a right which up to then did not exist because the land had been in common ownership. This means prospective buyers could be unaware of limitations that may affect the land.

In this case, the owner transferred part of his land to P1 (who subsequently transferred that part to SP1) and P2. The original transfers of part contained detailed provisions relating to the grant and reservation of easements including an express grant and reservation of rights of way over specified routes. Each transfer also included the following general clause:“… the property is 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 and without any liability on the transferor to define the same.”

High Court ruling

The High Court ruled that SP1 was not entitled to claim two additional rights of way along tracks over P2’s land that connected to a public highway, either by express grant or under section 62.

However, the Court of Appeal ruled that under section 62 SP1 was entitled to the rights claimed. It agreed that the tracks benefitted the transferred land rather than just being enjoyed as a general right when the land had been in common ownership. There was evidence to show that there had been a sufficient pattern of use for them to qualify as easements under section 62.

The fact that the use of the tracks was not necessary for the reasonable enjoyment of the land meant that a claim could not be made under common law, but this was not the case under section 62. The tracks had to benefit part of the land transferred rather than just be enjoyed as a general right when the land was in common ownership.

This case contained a useful analysis of the existing law about rights which may pass under section 62. It also highlights the need for detailed enquiries and physical inspection to be made when buying land, as the existence of private rights of way may not be obvious at first glance.

For more information please contact our commercial property department.

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