In Wood v Waddington  EWCA Civ 538, Mr & Mrs Wood sought to claim the benefit of rights of way over land owned by Mr Waddington. The Court of Appeal has recently allowed the appeal against the first instance finding that the Woods did not enjoy the rights of way claimed and the decision highlights the importance of ascertaining the position on the ground whenever a property is purchased.
The two parcels of land owned by the parties had previously been held by the same owner. In 1998, the owner divided up his land between a number of purchasers – including the predecessors to the parties in this case.
The transfers of the land contained detailed provisions dealing with the grant and reservation of rights and these followed much the same format. In addition to specific rights granted within the transfers, each document also contained a more general clause which confirmed that the sale included the “benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property”.
The Woods claimed rights of way over tracks on Mr Waddington’s land on the basis that the rights were expressly granted in the transfer to their predecessors-in-title (as a result of the clause referred to above), or included in that transfer as a result of section 62 of the Law of Property Act 1925 (as rights enjoyed by their land at the time of the transfer), or else should be implied.
The Woods failed to persuade either the first instance judge or the Court of Appeal that there was an express grant of the rights of way as a result of the clause in the transfer which provided that the sale included the “benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property”. (It is settled law that a right of way is not a “continuous” right.) They also failed to demonstrate that the rights of way should be implied, since the first instance judge found that the rights were not “necessary for the reasonable and convenient enjoyment of the land conveyed” and the Court of Appeal did not interfere with this finding.
However, the Court of Appeal found that the historic use of the tracks once a month was sufficient to support the acquisition of a right of way as a result of section 62 of the Law of Property Act 1925. In its view, the extent of use was both “apparent” and “regular”. (The judge at first instance had considered that this rare use of the rights of way meant that they were not “enjoyed with” the land when it was transferred, as required by the Act.) The Court confirmed that the fact that the two parcels of land had been owned by the same person at the date of the transfers (who therefore could not enjoy “rights” over his own land as such) did not prevent the Woods from succeeding in their claim on the basis of section 62.
In terms of the scope of the rights, the Court of Appeal reviewed the case-law relating to use of rights of way on foot and by animals. It held that the rights of way here would have included a right in the terms of the use proved (i.e. with vehicles) as well as on foot or on horseback (but not to drive animals). The Court considered whether the rights were affected by the fact that the use of the Woods’ land had altered from domestic to commercial (since the Woods had a livery business) but decided that this change amounted to no more than an intensification of the use of the rights of way, to which Mr Wood was not entitled to object.
In this case, the Woods’ ability to produce evidence of the historic use of the relevant tracks was critical to their success. Fortunately for the Woods, local residents were able to confirm the extent of the use of the rights of way a result of having seen traffic using the route or having used the track themselves. The physical features on the ground were also important in establishing the rights of way: the Court examined closely the evidence demonstrating that the track was “passable”.
Whenever a property is being acquired where there is a lack of clarity as to whether rights of way have been granted, such matters should be carefully investigated and appropriate evidence obtained from the seller.
SECTION 62 LPA 1925
This provides that any transfers of land (or buildings) include “…all…liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance…occupied, or enjoyed with…the land.”