Wood v Waddington [2014] EWHC 1358

Key point

  • Implied grant of easement under s62 LPA 1925 is applicable to quasi easements
  • Note: this case departs from earlier cases Long v Gowlett and Kent v Kavanaugh

Morgan J

Scope of s62 LPA 1925

  • For the purposes of s.62, there is no requirement that such an easement had to be necessary for the reasonable enjoyment of the land; in this respect s.62 differed from, and was broader than, the rule in Wheeldon v Burrows 
  • S62 normally applies in cases where there is diversity of occupation, since it helps to distinguish a case where a quasi-easement exists and cases where ‘the landowner is simply making use of the whole of his land as he pleases’
  • However, S62 can be applied in cases where the land was in common occupation as long as the right was continuous and apparent
  • Sarjant J’s judgment in Long v Gowlett is inapplicable to cases where there is a made road or the right is continuous and apparent, cases which he himself is argued to have excluded
  • Although s62 concerns rights ‘enjoyed with’ the land at time of conveyance, the ‘time of conveyance’ includes a reasonable period before the conveyance

Meaning of ‘continuous and apparent’

  • ‘continuous’ is to be given its ordinary meaning of uninterrupted and unbroken
  • The definition given by Ungoed-Thomas J in Ward v Kirkland is wrong, it is the use of the ways, not the ways itself that must be continuous
  • There must be a regular pattern of usage before the conveyance
  • Whether there are signs of a visible track or road (made road), it is not essential, if there are other indications of right of way

S62 can be excluded by express contrary intention under (4)

  • But the express grant of a narrower easement does not exclude the operation of s62 to grant a greater right