Clark v Barnes [1929] 2 Ch 368
Facts
The claimant, an owner of plots of land and a strip of land coloured brown leading from the plot 634 and part of 635 to the high road running from the village. He purchased the plots 634, part of 635, 652 and 653, including a right of way over the brown strip. He later sold the plots 653 and 652 to D. He found that D was passing over a track in plot 634 using the brown strip to take farm carts from his own land. He then sought a declaration that D was not entitled to any right of way and that the conveyance to him of plots 652 and 653 should be rectified.
Legal Issue
Could the conveyance be rectified to exclude a right of way which section 62 would otherwise transmit, where the parties had not intended to grant it?
Held
Luxmoore J ordered rectification of the conveyance to exclude the disputed right of way. The evidence showed that the parties had not intended the transfer to carry that route over the retained land. Without corrective wording, section 62 of the Law of Property Act 1925 could produce an implication inconsistent with that common intention. The instrument was therefore corrected by inserting an express exclusion. The decision did not establish that a seller can defeat section 62 merely by regretting a grant or asserting an undisclosed intention. It depended on the evidential basis for rectification, a remedy which must be established separately from the ordinary interpretation of an effective conveyance.
⭐ Legal Principle
A conveyance may be rectified to include an exclusion of a right otherwise passing under section 62 where the requirements for rectification are proved. A statutory implication is not defeated simply by one party’s later objection or uncommunicated intention.
Significance
Clark connects implied easements with equitable rectification. It reminds students to distinguish what an instrument presently does from whether it should be corrected to record the parties’ actual agreement. The statutory route and the remedial route should be analysed separately. Clear drafting excluding an unintended right can avoid this dispute; where that wording is absent, a party seeking rectification needs evidence rather than a bare assertion of unfairness.
Common exam questions about this case
Why was rectification relevant to section 62?
The conveyance as written could allow a right to pass by statutory implication. Rectification supplied the exclusion which the evidence showed was needed to reflect the parties’ intended transaction. The court was not simply refusing to apply section 62 because the resulting right was inconvenient.
Would the seller’s private intention have been enough?
No. Rectification requires an established legal and evidential basis; a private wish inconsistent with the executed instrument is not automatically sufficient. Clark involved evidence supporting correction of the conveyance, rather than a general entitlement for a seller to remove rights after completion.
How should this case be structured in an exam answer?
First ask what rights the conveyance and section 62 would ordinarily carry. Then consider whether the evidence justifies rectification and what corrected wording would achieve. Keeping those stages separate avoids treating a disputed intention as though it automatically changes the meaning of the executed grant.