• To be regarded as an easement within the meaning of The Law of Property Act 1925 s.62, the relevant time where the right must be present is the date of conveyance and not the date when possession is taken by the transferee.

Facts of the Case

  • A homeowner agreed to a let of an annexe at the back of her home to tenants for two years from January 1947.
  • Access to the annexe was permitted to the tenants through the house however there was also access through waste land at the back.
  • The lease was executed on 10th July 1947.
  • After, the homeowner let the house to another tenant who then barred the access through the house to the annexe.
  • The original tenants claimed an injunction against the second tenant.

Issues in Goldberg v Edwards 1950 ch 247

  • Did the first tenants have an implied grant of permission to enter through the house?

Held by Court of Appeal

  • Injunction granted.

Evershed MR

  • Held that strong evidence was required in order to show that a right to pass through anthers property “was necessary for the reasonable and convenient enjoyment” of premises behind, and therefore, there could be no implied grant apart from s.62.
  • The first two tenants had the benefit of a right of way to sue the front door which was granted impliedly under s.62 of The Law of Property Act.
  • “In my judgment the right of the plaintiffs, and it is the only right which they have established, is a right in themselves alone as lessees, and not in their servants or workmen or persons authorized by them, to pass through the defined passage to and from their works. That right, I think, should be exercised only during reasonable business hours. It is convenient that that should be stated by way of recital, and  I would prefer, in the circumstances, not to go further into the question of what precise hours were intended to be covered by the privilege. That being the right, there should be a declaration to that effect. I do not believe that there is any necessity for an injunction. It may be added that the tenancy will expire in fact in about thirteen months’ time, so that it is all less important than it might otherwise have been; but, if there is an assignment to a limited company, the result would appear to be that nobody could then exercise the right at all. I am hopeful, from the attitude adopted on behalf of the defendants, that there is here no lack of neighbourly spirit, so that matters will not be found difficult in practice. For the reasons and to the extent stated, the plaintiffs are entitled to the right which I have defined.” Pg 258