• The claimants in this case were entitled to the rights they sought to claim by virtue of s 62 Law of Property Act 1925, because they established continuous and sufficient use of the rights.

Facts of the case:

  • Mr and Mrs Wood sought to acquire two property rights in a property owned by D.
  • The Cs argued two points. Firstly that they derived the rights from an express grant of the claimed right by clause 12.3.3 of the transfer. They secondly argued that they were entitled to acquire the rights by virtue of s 62 Law of Property Act (LPA) 1925.
  • S62 (1)  LPA 1925 states: ‘A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings… liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.’

Issues before the Court of Appeal in Wood v Waddington [2015]

  • It wad for the Court of Appeal to decide whether the Cs enjoyed property rights over D’s property, and if so, how they acquired such rights.

CA held:

  • The CA reversed the decision of the High Court, and found that the Cs did indeed enjoy property rights.
  • The court however, rejected the argument that these rights were acquired by an express grant of rights contained within clause 12.3.3 of the transfer. This clause stated “sold subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property”. The CA held that a right of way was not continuous, as “continuous easements are those enjoyed without any human activity; such as right of light”. The right in this case was a right to use the ways, not the ways themselves.
  • The court accepted their argument that they acquired rights by virtue of s62, and the court relied on Alford v Hannaford [2011] EWCA Civ 1099, in reaching this conclusion. This case stated that where there is no diversity of occupation of the land prior to the sale, s62 can only result in the grant of easements where the exercise of the relevant rights had become continuous and apparent.
  • The exercise of the right of way in the present case was continuous, as the claimants used the land frequently. This is to be distinguished from a ‘continuous right’, such as a right to light. One refers to the continuous use of something, such as a right of way, the other refers to a right which is enjoyed without any human activity.

Lewison LJ:

  • “The grant in the written terms of a conveyance of a limited right will not exclude the operation of s62 to confer a greater right than that which is contained in the terms of the conveyance itself.”
  • “Accordingly in my judgment Mr and Mrs Wiood are T titled to the rights they claim virtue of s62 LPA 1925”
  • “It follows that the application of the rule in Wheeldon v Burrows does not arise; but it would have been an uphill struggle… to have successfully challenged the judge’s finding of fact that the claimed rights were not necessary for the reasonable enjoyment of the land transferred”

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