Browning and another v Jack and another

Land registration – Easement – Rule in Wheeldon v Burrows – Section 62 of Law of Property Act 1925 – Appellants purchasing cottage and surrounding land with titles deriving from two separate deeds – Appellants applying to register easements of right of way over respondents’ land – First-tier tribunal (FTT) deciding neither cottage nor land having benefit of easement – Appellants appealing – Whether contrary intention must be expressed in conveyance – Appeal allowed in part The appellants owned a property at Lower Clennick Farm, Saltash, Cornwall, which consisted of a cottage and around 22 acres of pasture that used to be part of the respondents’ property at Higher Clennick Farm. The cottage and land were in the same ownership until 1994, when G, who lived in the cottage as a licensee and had worked on Higher Clennick Farm for many years, bought the land. In 1995, the cottage was conveyed to him by deed of gift. In 1998, G transferred the title of the cottage to the joint names of himself and his wife. The first appellant bought the land and the cottage from G in 2006 and transferred the property into the joint names of himself and the second appellant in 2014. The appellants applied to register easements for the benefit of their property. They claimed that both their cottage and its surrounding farmland, registered under separate title numbers and whose title derived from two separate deeds, benefited from a right of way over a track on the respondents’ land. It was not disputed that the two easements claimed could only have come into being, if at all, as a result of the 1994 conveyance and the 1995 deed respectively, but they were not created expressly. The First-tier Tribunal decided that neither the cottage nor the land had the benefit of the easement claimed: [2021] UKUT 307 (LC). The appellants appealed. Held: The appeal was allowed in part. (1) The rule in Wheeldon v Burrows (1879) 12 Ch D 31 was intended to give effect to what the parties to a deed were supposed to have intended. On the grant by the owner of a tenement, or part thereof, there passed to the grantee all those continuous and apparent easements (quasi-easements) which were necessary to the reasonable enjoyment of the property granted, and which had been and were at the time of the grant used by the owner for the benefit of the part granted. The rule could be expressly excluded by a conveyance, and it would not operate if its creation of an easement would be inconsistent with the express terms of the conveyance. The rights claimed had to be continuous and apparent in that they were used and enjoyed for the benefit of the land conveyed; necessary for the reasonable and convenient enjoyment of the land conveyed; and not inconsistent with the express terms of the conveyance: Wood v Waddington [2014] EWHC 1358 Ch applied. The 1994 conveyance had included a covenant by G to maintain and repair the hedges and fences on the boundary and, within a month of being required to do so by the vendors, to erect a stock-proof hedge or fence across the line of the track. The appellants argued that that obligation, which might never be triggered, could be satisfied by installing a gate, rather than a fence, and so preserving the access to the track in a way that was consistent with the easement they claimed. Neither party had referred to a case where a covenant to fence had been held to be able to be satisfied by the erection of a gate with no fence. Apparently encouraging dicta had to be examined in their context and alongside what a particular case actually decided. The obligation to erect a fence across the line of the track meant just that. Accordingly, the appeal failed so far as the 1994 conveyance was concerned: Hillman v Rogers [1997] 12 WLUK 424, Shrewsbury v Adam [2005] EWCA Civ 1006, Alford v Hannaford [2011] EWCA Civ 1099 and Annetts v Adeley [2018] EWCA Civ 555 considered. (2) A conveyance of land included easements already appurtenant to it. But it was uncontroversial that section 62 of the Law of Property Act 1925 also picked up and transformed rights enjoyed with the land by permission, and transformed them into legal easements. Where section 62 was available, the rule in Wheeldon v Burrows was not needed because section 62 was of wider effect; the requirements of the latter were less strict because there was no requirement for an easement created by section 62 to be necessary for the reasonable enjoyment of the land. A significant difference between the 1994 conveyance and 1995 deed was that, whereas in the 1994 conveyance the operation of section 62 was expressly excluded, there was no such exclusion in the 1995 deed. It followed from the FTT’s findings of fact that the conditions required for the operation of section 62 were met; at the time of the deed of gift, the track was “enjoyed with” the cottage as section 62(1) required. The FTT had been persuaded by the respondents’ argument that there was authority to the effect that regard might also be had to the admissible surrounding circumstances at the date of the deed. The FTT made an error of law in concluding that there was sufficient evidence of a contrary intention to prevent the grant of a right of way for the benefit of the cottage under the 1995 deed. (3) Section 62(4) meant what it said: a contrary intention had to be expressed in the conveyance; surrounding circumstances might be used to construe express provisions in the conveyance but could not by themselves show an intention to exclude the operation of section 62. The FTT’s decision that section 62 was excluded from the 1995 deed was drawn solely from what was said in the 1994 conveyance. There was nothing in the 1995 deed that could be regarded as an expression of intention to exclude section 62. Accordingly, section 62 took effect and the quasi-easement along the track was transformed into an easement by section 62. The owners of the cottage would always be able to use the track but, if they sold part of the land separately, the new owners of the land would not be able to do so. However, the owners of the cottage would be free to choose to retain part of the land, or to reserve an easement, to preserve their own access. Jonathan Ward (instructed by Direct Access) appeared for the appellants; John Antell (instructed by Prydis Legal of Exeter) appeared for the respondents. Eileen O’Grady, barrister  Click here to read a transcript of Browning and another v Jack and another