Legal Principles and Key Points
- In the case of Clark v Barnes 1929 2 Ch 368, it was held a grant can be rectified to prevent the implication of an easement under s.62 Law of Property Act 1925.
Facts of the Case
- 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.
Issues in Clark v Barnes 1929 2 Ch 368
- Could C prove D was not entitled to any right of way over his land and rectify the conveyance.
Held by High Court
- Held that C was entitled to rectify the conveyance.
- Here, on the evidence provided, it was clear that the parties did not intend that any such right should pass on the conveyance of the plots 653 and 652.
- The conveyance therefore could be rectified by the insertion of proper words that would limit the implication of any right of way, which might arise under s.62 of the Law of Property Act 1925.
- “In those circumstances I think the plaintiff is entitled to succeed in his claim to have the conveyance rectified by the insertion of proper words to prevent the implication of a right of way under the Law of Property Act, 1925, s. 62. I think the conveyance should be rectified by inserting therein immediately before the acknowledgment of the purchaser’s right to production of the deeds, the words which appear in para. 2 of the prayer of the statement of claim :” provided that any implication of a right of way for the purchaser from the north-west corner of the property hereby conveyed over and across the adjoining land of the vendor (being the parcels, numbered 634 and 635 and the strip leading thence to the highway) is hereby expressly excluded.” The result is that the plaintiff succeeds in the action and the defendant must pay the plaintiff’s costs.” Pg. 382