Rights of way and other rights (easements) for the benefit of property can be created by express grant or impliedly, for example based on long use.
Rights of way and other rights (easements) for the benefit of property can be created by express grant or impliedly, for example based on long use. Rights can also come into being by operation of statute and a recent Court of Appeal case, Wood and Another v Waddington, considered the effect of Section 62 of the Law of Property Act 1925 and how this may confer rights greater than expressly provided in a transfer of land. Section 62 is a form of conveyancing shorthand to save the person drafting the document having to write out at tedious length that the property being transferred includes all “hedges, ditches, fences, ways, waters…” and, where the land is built on, all “outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters… ” and so on. In each case the general words implied under Section 62 include all easements, rights and advantages whatsoever appertaining or reputed to appertain to the land “… or, at the time of conveyance, demised, occupied, or enjoyed with … the land”. These general words (unless a contrary intention appears) can have the effect of creating new rights where properties are divided and sold to separate owners, even if no express rights are provided, and, as the recent case has confirmed, can give greater rights than expressly provided depending on the evidence. Mr and Mrs Wood and Mr Waddington owned land which had previously been in common ownership. Various tracks crossed Mr Waddington’s land which the Woods claimed they were entitled to use. Unsuccessful in the High Court the Woods appealed on various grounds including a claim that the transfer of their land included rights to use the tracks and also relying on the effect of Section 62. The transfer included the benefit of “all liberties privileges and advantages of a continuous nature”. The Court of Appeal confirmed that, to be continuous, use of rights claimed had to be continuous in its usual sense of being unbroken or uninterrupted. Use of a right of way is not continuous as it requires active use. This is in contrast to rights to use drains, rights to light and rights to support which do not require active use and are continuous. The Woods therefore did not succeed in arguing the wording of the transfer entitled them to use the tracks. However they did succeed on the basis of Section 62. The evidence showed enough use of the tracks at the time of the transfer. First, one track had been used about once a month. Second, in the case of another track, there were sufficient visible signs on the ground to show continuous and apparent use. Third, there was also sufficient evidence of vehicular use. Accordingly, on the basis of this use, Section 62 had the effect of granting express rights for the benefit of the Woods’ land. The Court of Appeal also clarified the scope of the rights granted. They confirmed that a right for vehicular use (as proved here) includes a right to use the track on foot or on horseback (but not to drive animals). Another question was whether the right was limited to domestic use as the Woods wished to use the tracks on horseback for their livery business. The Court of Appeal, in looking at a right “as at present enjoyed”, confirmed this did not refer to the purpose but the manner of use, for example on foot or with animals. In considering change of use, the Court applied the approach taken in McAdams Homes Ltd v Robinson (a case involving drainage and a change of use from a bakery to residential development). A person whose land is subject to a right can only object if, first, there is a radical change in the character or identity of the site enjoying the right and, second, that changed use results in a substantial increase in the burden on the land over which the right is enjoyed. The Woods’ increased use of the tracks for the livery business was no more than intensification of use (as there had been pre-existing stables) and mere intensification of use is not enough to enable the owner of the burdened land to object. The Court of Appeal case reinforces the need to consider the position on the ground and consider relevant evidence even if the title documents do not include express reference to rights. For more information, please contact Kate Church on 01223 461155 or click here to email Kate.