Easement by implication - s62 - enfranchisement
Kent v Kavanagh
 EWCA Civ 162
The following issues arise out of this case:
Implication in context of grant of leases
- Easement by implication
- Effect of enfranchisement on the easement
- Application of s62 of the 1925 Act where the easement was originally enjoyed by a lessee rather than the freehold owner
Two neighbours shared a path between their houses leading to their back gardens. The boundary line ran between the two properties down the centre of the path. Each original owner of the house had a lease of his house, granted by a common original landlord. There was no express right of way but the court held that in the circumstances it would be right to imply such a right in each lease. Chadwick LJ:
"The position, therefore, is that, at the time when headleases of the two plots were granted at the end of 1909, the landlord (as common owner) chose to include in each lease one half of the pathway which lay between the two properties. Given that the whole width of the pathway was and is only three feet, it must have been appreciated that the pathway could not be used by the lessee of either plot without passing over the half which was included in the other lease; and it must have been the intention to the parties to those leases that that is how the pathway would be used. In those circumstances there was, as it seems to me, no difficulty in implying into each lease the necessary grant and reservation of reciprocal rights of way so as to enable the pathway to be used as intended." (para 63).After enfranchisment of the leases
There was a further issue in the case: did the easement survive enfranchisement of the properties? The answer was yes. The easement was a right that went with the purchase by virtue of s62 of the Law of Property Act 1925 (ss 8 and 10(1) of the Leasehold Reform Act 1967); and it did not matter which property was enfranchised first. Lewinson J:
"..it does not matter which of two adjoining leasehold properties is enfranchised first. Both enfranchising tenants will continue to be bound by the rights which bound them as leaseholders and will continue to enjoy the rights that they enjoyed as leaseholders. All that has changed is that they enjoy and are bound by those rights as freeholders rather than as leaseholders" (para 76).Wheeldon v Burrows - Section 62.
The defendants, who opposed the claim, for a right of way over the half of the path owned by them argued that the rule in Wheeldon v Burrows was not satisfied after the conveyance pursuant to the enfranchisement. That was correct because it would be "an unnecessary and artificial construct" to hold that the grantor, as common owner and the landlord of the land conveyed, had himself been using the rights over the retained land which his tenant had been enjoying under the lease. (Chadwick LJ at para 45).
However, the fact that the two parties exercising the right of way prior to the enfranchisement were leaseholders, rather than freeholders, did not prevent the easement from continuing by virtue of s62 of the Law of Property Act 1925. Although there was no separation of freehold ownership there had been a separation of occupation and this was sufficient. The following quotation of Lord Wilberforce from Sovmots Investments Ltd  AC 144 was applied:
"section 62 does not fit this case [ie the Sovmots case]. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist.."Having quoted that passage Chadwick LJ went onto state:
"As Lord Wilberforce pointed out, there can be no sensible concept of rights over one part of land for the benefit of another part while the two parts are in common ownership and occupation. But, once there is a separation of occupation (because part of land in common ownership is held by a tenant under a lease) there is no conceptual difficulty. There may well be rights over the untenanted part of the land for the benefit of the tenanted part. If there are, those rights are within the wide compass of section 62 of the 1925 Act."In this case, each neighbour had had a right of way over the other half of the path during the period of lease ownership. During that period each half of the path was in separate occupation, under each lease. When the leasehold owners became freehold owners by virtue of the enfranchisement s62 applied so as to continue the easements.
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