Wood & Another v Waddington  EWCA Civ 538
It's not what you said, it's how you said it
The Court of Appeal has found that the Claimants in this case, Mr and Mrs Wood, were entitled to claim two rights of way across parts of their neighbour's land. The land had once been in common ownership and the issue arose after it was sold to the Claimants and the Defendant in separate parcels.
The Claimants sought an Order that the sale contract granted them express rights of way under the wording of the deed. Failing that, they argued that the rights were implied under statute. They failed on the first argument, but succeeded on the second, as the Court of Appeal found that the easements were "continuous and apparent", as required by the law, and that there had been sufficient evidence of use to support the claim. Consequently they were found to have rights of way over their neighbour's land.
This is a complex and difficult area of law with far-reaching consequences for land owners and developers.
At first glance, the parties involved in this case - a wealthy landowner, a Liberal Democrat peer and an SAS hero - seem to have stepped out of the plot of a Jilly Cooper novel rather than a Court of Appeal decision. In fact, this is a case about rights over neighbouring land that brings some much needed clarity to a famously murky area of English law.
The area of law in question is that of easements. An easement is a right enjoyed by one party to do something over land that belongs to someone else. This case relates to rights of way, but other common examples include rights of light, a right to park and a right to run utility services across the land.
There are several ways in which an easement can be created. Most obviously, easements can be created expressly by deed, either individually or as part of a larger contract. This means that the terms are usually easier to determine, although there can still be issues over the meaning of the deed. Alternatively, easements can be created impliedly, such as where a land owner sells off part of his property. Parties can also claim that easements have arisen, for example by necessity, or by prescription after a long period of use.
This case concerned a sale of part. The governing statute is Section 62 Law of Property Act 1925, which provides that a sale of land shall be deemed to include and shall convey with the land all ways, watercourses, privileges, easements, rights and advantages whatsoever and which:
- appertain to the land or any part of it or are claimed to do so; or
- are, at the time of the sale, occupied or enjoyed with the land or any part of it.
The rules relating to implied easements are complex and each case depends very heavily upon its own facts. This means that there is a minefield of case law which can pose a trap for the unwary land owner or developer.
The original owner of the land, Mr Crook, sold it in two separate parcels in 1998. He sold the first part, which included a farmhouse and surrounding land, to the Claimants. He sold the second part to the Defendant. The land was criss-crossed by various farm tracks and two public bridleways.
The Claimants argued that they were entitled to rights of way across the Defendant's land at two different points: first to access a track and gain access to a public road; and secondly to cross another stretch of track on foot or horseback. In particular, the Claimants ran a livery stable from their property, and they wanted the benefits of the rights of way so that riders could reach a nearby bridleway.
The Claimants argued that they had been granted express rights of way under the contract for sale. Alternatively, they argued that the rights were implied under Section 62 Law of Property Act 1925; and/or under the doctrine established by the leading case of Wheeldon v Burrows (1879) 12 Ch 31; and/or that the rights were created in consequence of the common intention between the seller and the Claimants when they purchased the land.
The Defendant, who ran a well-known partridge and pheasant shoot from his property, was concerned about the impact of the rights of way on his business. He disputed that the Claimants had any rights. In particular, he argued that any rights for the second claim to cross the track on horseback must be restricted for domestic purposes only, as the livery business had not been in existence when the Claimants had purchased their property.
At first instance, the Court dismissed the claim and found in favour of the Defendant. The Claimants appealed.
The Court of Appeal overturned the initial judgment and found in favour of the Claimants. Whilst it did not agree that there was an express grant under the contract, it found that the Claimants had met the criteria for an implied grant. The Court gave the following reasoning:
The claim for an express grant relied entirely upon the wording of the specific contract for sale. This contained a number of clauses. As they are unique to this case, they provide little in the way of general guidelines, but it is worth noting that one of the clauses used the phrase "of a continuous nature" when referring to various rights.
The Court found that the usual meaning of "continuous" under this clause was "uninterrupted or unbroken". The right in question was the right to use the ways, not the ways themselves. Consequently it was the use that had to be continuous. The clause had to be interpreted in this conventional sense and was therefore confined to easements falling within that category. As rights of way do not fall within that category, the claim for an express grant failed.
On the second claim, i.e. the argument that the rights had been granted impliedly, the Court had to consider the fact that the land had been in common ownership prior to the sale of each part. Usually it is an essential component for the creation of an easement that the properties be owned by different parties. However, there are some exceptions. In this case, the Court found that Section 62 could operate to grant easements where there had been common occupation if exercise of the rights had been "continuous and apparent".
The Court explained that the applicability of Section 62 depended on the features observable at the date of the conveyance and the use made of the claimed rights. In relation to the first right of way, there were sufficient signs on the ground to show that the claimed route was "continuous and apparent". After listening to various witnesses, the judge at the first hearing had found that the claimed route had been used once a month in the period immediately preceding the sales. Once a month did not fall short of a regular pattern of use and was thus sufficient to count as "enjoyment" under Section 62.
In relation to the second right of way, this again was continuous and apparent, and there was sufficient evidence of vehicular use to demonstrate that it had been enjoyed along with the remainder of the track.
The Defendant's Argument
Having found in favour of the Claimants in that they enjoyed rights of way that had been granted impliedly, the Court also rejected the Defendant's argument that the second easement should be restricted to domestic purposes only. Since there were already stables on the land at the time it was sold, the mere fact that the Claimants had subsequently started a livery business did not amount to a radical change in the use of their land. It was merely an intensification of the existing use. It should be noted that, in some circumstances, intensification of use can be grounds for the owner of the land over which the rights are being exercised to object, but in this case the Court felt that the change was not sufficiently "radical" to permit objection.
Discovering that a third party has rights over land can be very difficult for owners and developers who may be prevented from using it as they had planned. The matter is made even more complicated by the fact that not all easements are contained neatly within deeds. As with this case, even where the deed did not expressly grant the rights of way, they could still arise under other circumstances.
If you are selling a parcel of land, we would recommend giving very careful consideration to the rights that you intend to reserve over that land. Whilst the Claimants in this case succeeded, it depended entirely upon the facts and the existing history of the use by the previous owner. They could have found themselves in a much more difficult position had the Court of Appeal upheld the original decision and denied them the ability to use the rights of way.
If you are acquiring land, we would again recommend carrying out very careful due diligence to flush out all rights that any third party might have over it. A right of way across the middle of a piece of land could prevent development or restrict enjoyment of using it, and it is essential to be as fully informed as possible before committing to the transaction.