Kent v Kavanagh [2007] Ch 1

Key point

  • An easement can be implied under s62 LPA 1925 only where there is separate occupation of the land sold and retained, while an easement can be implied under Wheeldon v Burrows only where there is common occupation
  • Note: this precedent was not followed in Wood v Waddington

Facts

  • Common owner of one part of land that is freehold and one part that is subject to lease
  • C lessee had a right of access to the garden that was not formally recorded in the lease
  • The freehold land subject to leasehold was sold to C

Held (Court of Appeal)

  • C had an easement implied under s62 LPA 1925 but not under the rule in Wheeldon v Burrows

Chadwick LJ

  • Wheeldon v Burrows applies to cases where lands sold and retained were in common ownership and occupation at the date of conveyance
  • Where the lands were in separate occupation on the date of conveyance, application of s62 LPA 1925 is more apt
  • Applying Wheeldon v Burrows leads to ‘an unnecessary and artificial construct’ to hold that the grantor as common owner and landlord is himself using the rights over the retained land
  • There is no sensible concept of rights over one party of land for the benefit of the other part while both are in common ownership and occupation, but when there is separation of occupation there is no conceptual difficulty
  • There may well be rights over the untenanted part of the land for the benefit of the tenanted part, which are within the wide compass of s62

Commentary

  • s62 can operate where the dominant tenement is a lease on the freehold and the tenant is granted some privilege over the freehold owned by landlord, that privilege maybe converted to an easement under s62 upon renewal of lease or the tenant purchasing a freehold reversion