The Land Registration Division of the First-tier Tribunal has considered the operation of section 62 of The Law of Property Act 1925 in conveying rights enjoyed at the date of sale in Balsdon v Hine Ref 2021/0242.
The applicant was the proprietor of 3 Latimer Road, Rickmansworth (“number 3”) a mid-terraced property with a small front garden and a larger garden to the rear. To the east, adjacent to number 3 was 4 Latimer Road (“number 4”) and further east, a driveway 10ft wide bounded by the flank walls of number 4 and the property at 5 Latimer Road (“number 5”) which belonged to the respondents. The driveway belonged to number 5. The applicant asserted a right of way over the driveway contained in a conveyance dated 22 September 1970.
Prior to the 1970 conveyance, numbers 3, 4 and 5 were in common ownership. Number 5 was conveyed away by the 1970 conveyance which contained an exception and reservation to the vendors and owners of numbers 3 and 4 of “a right of way with or without vehicles at all times and for all purposes over the driveway”. A conveyance of number 4 dated 10 January 1978 conveyed the same right of way in common with the owners of number 5. It also provided separately for the benefit of the owners of number 3 a right of way on foot only “for the purpose of affecting trade deliveries and collections” between the boundary of numbers 3 and 4 and the driveway. A conveyance of number 3 dated 24 February 1978 recited the benefit for number 3 of the right of way on foot but made no reference to the vehicular right of way. Was the applicant entitled to the right granted in the 1970 conveyance?
Section 62 of the Act provides that on a sale of a property the conveyance is deemed to include and to operate to convey with the property all easements rights and advantages appertaining or reputed to appertain to the land or enjoyed with it unless a contrary intention is expressed in the conveyance when section 62 takes effect subject to the terms of the conveyance.
The FTT decided that prior to the February 1978 conveyance a holistic consideration of the rights number 3 required in the future was undertaken which concluded that only a right of way on foot for limited purposes was required. A further consideration was the logistical difficulty of turning a private vehicle in the confines of a right of way only 10 ft wide with no rights over land adjacent to it in the ownership of numbers 4 or 5. The right in the 1970 conveyance had neither been abandoned nor released. However, a lesser right than that contained in the 1970 conveyance had been conveyed by the February 1978 conveyance and the provisions of that conveyance amounted to a contrary indication for the purposes of section 62 of the Act. The FTT directed that the applicant’s application to register a right of way over the driveway was cancelled.
Louise Clark is a property law consultant and mediator
