Away with words: LPA 1925, s. 62
Published April 2016
The decision in Wood v Waddington  EWCA Civ 538
Simon Atkinson appeared with Jonathan Karas QC (of Falcon Chambers) for Mr and Mrs Wood.
The decision in Wood v Waddington is relevant for both conveyancers and property litigators. It sheds valuable light on how courts will interpret conveyances and how courts will apply section 62 of the Law of Property Act 1925 when a single landowner transfers his land in parcels simultaneously to several transferees.
This case concerned farm land in Wiltshire which had been owned by a Mr Crook. He sold the land in parts in 1998. Part of the land, which included the farmhouse and various stables and cottages, was sold to Mr and Mrs Sharman, the Woods’ predecessors in title. This land was known as “Manor Farm”. Most of the rest of the working farm was sold to Mr Waddington.
By clause 12.3.3 of the conveyance to the Sharmans, Manor Farm was “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”.
Two bridleways ran over Mr Waddington’s land. One of these bridleways (“Teff 9”) ran along a track running north-south along the eastern edge of Manor Farm (“Track 1”). On Track 1 there was an intersection with a track running east-west over the Woods’ land. The intersection was a point known as Point D. Teff 9 did not, however, touch the boundary of Manor Farm (Teff 9 being narrower than Track 1).
Another track ran north-south over the Woods’ land to a point on the northern boundary of Manor Farm known as Point J. This track then continued northwards over Mr Waddington’s land where, some 200 metres further along, it met the second bridleway (“Teff 5”).
Mr and Mrs Wood claimed that upon the division of the land in 1998 rights of way passed to their predecessors in title either (a) under the express wording of the conveyance, (b) pursuant to LPA 1925, s. 62, (c) under the rule in Wheeldon v Burrows, or (d) because the parties had a common intention that the land conveyed was to be used in a definite and particular manner. Mr and Mrs Wood’s claim was rejected at first instance by Morgan J.
The Court of Appeal, in a unanimous judgment given by Lewison LJ, rejected Mr and Mrs Wood’s claim under ground (a). They reaffirmed the distinction, borrowed originally from the French Civil Code, between continuous easements which can be enjoyed passively (such as a right to use drains) and non-continuous easements which can only be enjoyed by personal activity (such as rights of way). The Court held that the claimed rights of way, being non continuous, did not fall within the wording of clause 12.3.3.
The Court of Appeal held, however, that the rights claimed did arise under LPA s. 62. It had been held at first instance that (despite some dicta to the contrary from the House of Lords in Sovmots Investments Ltd v SS for the Environment  AC 144) the fact that there was no diversity of occupation or ownership of the farm prior to its division in 1998 was no bar to s. 62 operating; that finding was not challenged on appeal. In cases where there was no diversity of occupation or ownership, however, it is necessary to show that at the date of the conveyance the right claimed was “continuous and apparent” in the Wheeldon v Burrows sense. Rights of way can be “continuous and apparent” in this sense, provided that they are capable of identification at the time of the conveyance. In differing from Morgan J, the Court of Appeal held that the rights of way claimed were “continuous and apparent”. Looking at the features on the ground in 1998 there were clear termini and the tracks were observable. The fact that the tracks were not made roads and were badly potholed did not matter.
As part of its reasoning, the Court of Appeal held that it was necessary to show that the rights claimed had been used in the reasonable period of time prior to transfer, but (relying by analogy on cases where prescriptive easements had been claimed) that use once a month or once every two months could be enough. On the trial judge’s findings, the evidence was sufficient to show the requisite user.
The Court of Appeal did not resolve whether it is also necessary to look at the purpose to which the pre-conveyance use of the tracks had been directed. In Long v Gowlett  2 Ch 177 it was said by Sargant J that the use of a track prior to transfer must arise out of the ownership or occupation of the conveyed land “altogether apart from the ownership or occupation” of the retained land. The Court of Appeal held that, even if that is a requirement of s. 62, it was satisfied on the Defendant’s own evidence.
Finally, the Court of Appeal held that the operation of 62 was not excluded by the words of clause 12.3.3 of the conveyance. The effect of the Court’s decision is to reaffirm established case law which shows that it is difficult, in the absence of clearly expressed wording, to exclude the operation of this section.
The decision in Wood is important for transactional lawyers and litigators alike. For the former, it is a reminder of how potent s. 62 can be and of the need to be alive to the possibility of rights arising which have not been expressly identified in the conveyance. For litigators, it helps clarify what elements of a claim under s. 62 need to be pleaded and proved.