Transmission of easements

Louise Clark analyses a right of way ruling concerning Cornwall farmland. Key points Failure to exclude section 62 of the Law of Property Act 1925 can lead to unintended consequences Evidence of “contrary intention” must be expressed in the conveyance itself Beware overreliance on textbooks The Upper Tribunal (Lands Chamber) has considered the rules for transmission of easements in Browning and another v Jack and another [2021] UKUT 307 (LC); [2021] PLSCS 216. The rule in Wheeldon v Burrows (1879) 12 Ch D 31 aims to give effect to what parties to a deed are supposed to have intended by passing to a grantee easements which are necessary to the reasonable enjoyment of the property granted, and which at the time of the grant are used by the owner of the whole for the benefit of the part granted. The right must be: continuous and apparent, so 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.  Section 62 of the Law of Property Act 1925 was intended to be a word-saving provision, ensuring that rights appurtenant to land were conveyed with it. It provides that a conveyance of land is deemed to include and to convey with the land all buildings, rights and advantages enjoyed at the date of conveyance, provided that there is no contrary intention expressed in the conveyance. So, as well as including easements appurtenant to the land, it also transforms rights enjoyed with the land by permission into legal easements. It is wider in effect than the rule in Wheeldon since there is no requirement for an easement created by section 62 to be necessary for the reasonable enjoyment of land. The background Browning concerned two properties near Saltash, Cornwall: Higher Clennick Farm owned by the respondents, and Lower Clennick Farm owned by the appellants. Until 1994-95, the farms were in the same ownership, with a track running north-south across the land.  Lower Clennick Farm comprised two parcels of land in separate titles: 22 acres of pasture (the land) which the appellants’ predecessor, Gerald Pote, had purchased in 1994; and a cottage which he acquired by deed of gift in 1995. Pote had worked for many years on Higher Clennick Farm and married the owner’s granddaughter.  Lower Clennick Farm lies to the south of Higher Clennick Farm. The appellants claimed an easement of a right of way north over the track on the respondents’ land for the benefit of the land and the cottage.  Neither the 1994 conveyance nor the 1995 deed granted an express right but the appellants claimed that Pote and his family had used the track before and after he acquired the properties. It was not disputed that the two easements claimed could only have come into being, if at all, as a result of the 1994 and 1995 conveyances.   The rule in Wheeldon and the 1994 conveyance The 1994 conveyance excluded section 62 of the 1954 Act. The reservations to the vendor over the property, conveyed for the benefit of Higher Clennick Farm, also expressly excluded a right over the track to the south.  The 1994 conveyance also included a covenant by Pote to maintain and repair the hedges and fences on the boundary between the two farms and, within a month of being required to do so by the vendors, to erect a stockproof hedge or fence on the boundary line, across the line of the track.  The respondents argued that this obligation was inconsistent with a Wheeldon easement over the track, but the appellants argued that the obligation might never be triggered and could be satisfied by installing a gate. The First-tier Tribunal did not agree and the argument also failed on appeal. There was no authority that a covenant to fence had been held to be satisfied by erecting a gate with no fence at all.  The UT decided that the wording of the covenant appeared to have been deliberately designed to enable access along the track to be cut off.  Section 62 and the 1995 deed A significant difference between the 1994 and 1995 transactions was that the 1995 deed did not exclude the operation of section 62 of the 1925 Act. The FTT decided that at the time of the 1995 deed the track was enjoyed with the cottage and, therefore, since the 1995 deed was entirely silent on the track, the provisions of section 62 of the 1925 Act appeared to have been met. However, the FTT was persuaded by the respondents to take account of admissible surrounding circumstances at the date of the 1995 deed and decided that the fencing covenant and obligation contained in the 1994 conveyance carried over into the 1995 deed. They were 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.  The UT found that the FTT had erred in this respect and highlighted contradictions on the issue between Megarry and Wade: The Law of Real Property and Gale on Easements, the latter being correct. The authorities permit reference to the surrounding circumstances, but only in order to construe the express words of a conveyance and avoid inconsistency.  While the 1994 and 1995 transactions were undoubtedly linked, with Gerald Pote acquiring the land in anticipation of receiving the cottage, for section 62 to be defeated by evidence of contrary intention, that contrary intention must be expressed in the conveyance itself and not derived solely from the surrounding circumstances. The cottage did benefit from an easement along the track. Louise Clark is a property law consultant and mediator Photo by Rex/Shutterstock