• In the case of Kent v Kavanagh [2007] Ch 1, it was held that where the tenants had a right of way over half of the paths, they could use the other half despite this being a technical breach as it constituted an implied easement. Wheeldon v Burrows [1879] was distinguished from due to there not being common occupation at the time of conveyance.

Facts of Kent v Kavanagh [2007] Ch 1

  • Freehold owners entered into an agreement with the builders’ firm who erected a road of houses on the same estate
  • 2 houses shared a path to access their gardens
  • Upon conveyance, the tenants had not expressed a right of way to be included
  • Freehold owners later brought a claim, seeking entitlement to the right of way on the path

Issues in Kent v Kavanagh [2007] Ch 1

  • Was there an implied easement right of way here to the use of the path?

Held by the Court of Appeal

Appeal dismissed – there was an implied easement.

Lord Justice Chadwick

Wheeldon v Burrows does not apply as such rule “can have no application to a conveyance executed to give effect to the obligation imposed by section 8(1) of the 1967 Act. … the principle is based on the proposition that a man does not intend to derogate from his grant” [36]

  • The land and retained land must have been in common ownership [43]

Therefore s62 of the Law of Property Act 1925 applies, Wheeldon v Burrows seemed to be “an unnecessary and artificial construct” to use for Chadwick LJ [45]

Citing Wilberforce L in the Sovmots appeal [1979], Chadwick LJ determined there would be “no sensible concept of rights over one part of land for the benefit of another part while the two parts are in common ownership and occupation”. However in the context of separation, there is no difficulty. “There may well be rights over the untenanted part of the land for the benefit of the tenanted part. If there are, those rights are within the wide compass of section 62 of the 1925 Act.” [46]

“this case demonstrates how important it is for any conveyancer concerned with enfranchisement to consider carefully the rights and obligations to be contained in the conveyance executed to give effect to the tenant’s right to enfranchise; and to ensure that the correct rights are both granted and reserved” [78]

Editorial comment

This precedent was not followed in the case of Wood v Waddington [2014] EWHC 1358.

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