Rights of way created by statute – why land buyers need to keep their eyes peeled
In the recent case of Wood and Another v Waddington the Court of Appeal found that the claimants, Mr and Mrs Wood, were entitled to two rights of way across the land owned by the defendant, Mr Waddington. The land owned by the Woods and Mr Waddington had once been owned as a single plot. The issue of rights of way to and from the Woods' land arose only after the land had been transferred to the Woods and Mr Waddington as separate parcels.
Initially the Woods failed to obtain an Order from the High Court that the purchase documents granted them express rights of way. However, they subsequently succeeded in the Court of Appeal with the argument that the rights were created through the operation of section 62 of the Law of Property Act 1925 (LPA 1925). The Court found that the easements were "continuous and apparent" as required by the legislation and that there had been sufficient evidence on the ground for the claim to succeed.
Manor Farm was an estate originally owned in its entirety by a Mr Crook and was carved into numerous parcels in 1998. A parcel of the land was sold to the Sharmans (the Woods' predecessors) and an adjacent parcel transferred to Mr Waddington. In 2009, the Sharmans transferred most of the land they had acquired in 1998 to the Woods.
Numerous tracks and two public bridleways crossed the estate in question at the time the land was sold in 1998. In 2000, the Sharmans began a livery business in the stables. The Woods carried on and expanded the business. However, the Woods needed the benefit of additional rights of way so that riders could reach a nearby bridleway.
The 1998 transfers to the Sharmans and Mr Waddington both contained an express right 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.'
The Woods claimed to have two additional rights of way (first to access a track and gain access to a public road; and secondly to cross another stretch of track on foot or horseback) over the land owner by Mr Waddington on the following grounds:
- the rights claimed were expressly granted by means of the general grant contained in the 1998 transfer;
- the rights claimed were advantages enjoyed with the land transferred to the Sharmans and became easements under statute Section 62 LPA1925 which provides that a conveyance of land shall convey all those liberties, privileges, easements, rights and advantages enjoyed with the land at the time of the conveyance;
- the rights claimed were to be implied into the transfer to the Sharmans under the rule in Wheeldon v Burrows which requires that the rights claimed were continuous and apparent in that they were used and enjoyed for the benefit of the land conveyed, they were necessary for the reasonable and convenient enjoyment of the land conveyed and they were not inconsistent with the express terms of the conveyance;
- rights were created in consequence of the common intention of the parties that the land conveyed was to be used in a definite and particular way;
High Court Decision
The High Court held that the Woods were not entitled to the claimed rights either by express grant, under Section 62 or by any process of implication.
Court of Appeal Decision
However, although the Court of Appeal agreed with the High Court that there was no express grant under the terms of the transfer, it decided on the facts of the case that the claimed rights of way were advantages "enjoyed with" the land transferred, which became easements under section 62 of the LPA 1925.
The Court had to take into account the fact that the land had been in common ownership prior to the sale of each part. For the creation of an easement, it would normally require that the properties are owned by different parties but there are exceptions to the rule.
The Court found that easements could be granted (under Section 62) where there had been common occupation if the exercise of the rights had been "continuous and apparent". The Court explained that when assessing if Section 62 applied in this case, it considered the features observable at the date of the transfer to the Sharmans in 1998 and the use made of the claimed rights.
Applying the law to the facts of the case
First Right of Way claimed – right of access to a track and access to a public road. There were sufficient signs on the ground to show that the route of the right of way claimed was "continuous and apparent". The route had been used once a month in the period immediately preceding the sales. Once a month was considered consistent within a regular pattern of use and therefore sufficient to count as "enjoyment" under Section 62.
Second Right of way claimed – right to cross another stretch of track on foot or horseback. This was also considered continuous and apparent as there was sufficient evidence of vehicular use to demonstrate that it had been enjoyed together with the remainder of the track.
This case is an example of how rights can arise despite no diversity of occupation. It is, therefore, imperative that all historical evidence is considered and not just the easements contained within deeds.
In particular, buyers of development and other rural land should focus on ground features when carrying out their inspections, as they are evidence of possible rights affecting the land which might prove to be expensive or even impossible to sort out.