Tag Archives: diversity of occupation

Previous diversity of occupation not essential to rights claimed

The case below has had much interest in the national press as the Claimant Mr Wood MBE was a well known soldier who had spent well over £3m on a new equestrian centre which relied heavily on a claimed “right of way” across a neighbour’s. The neighbour said the horses affected his game bird breeding.

In the Court of Appeal case of Wood & Anor v Waddington [2015] the Claimants, Mr and Mrs Wood, said that they had rights of way over land owned by the Defendant, Mr Waddington.

The Woods’ and Mr Waddington’s property had been owned by a Mr Crooks prior to 1998.

Mr and Mrs Wood said:

1. that the rights claimed were expressly granted to their predecessors in title, Mr and Mrs Sharman by clause 12.3.3 of the transfer from Mr Crooks to Mr and Mrs Sharman. This said

“… the Property is 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…”.

Corresponding rights had been reserved out of the transfer to Mr Waddington by clause 12.5.3 of that transfer.

However at first instance the High Court had concluded that for the general words in those clauses, a right of way was not a liberty, privilege or advantage “of a continuous nature“. It gave those words their established conveyancing meaning not intending to deal with rights of way at all but instead things like pipes wires and drains.

2. Mr and Mrs Wood said the rights claimed were advantages enjoyed with the land transferred by Mr Crooks to the Sharmans, their predecessors in title, and became easements under section 62 of the Law of Property Act 1925.

The Claimants said that the rights which they claimed were, prior to the transfer to Mr and Mrs Sharman, “enjoyed with” the land so transferred under section 62.

However at first instance the High Court said section 62’s use of the word “with” suggested that before the conveyance, there must have been a relationship between the land to be conveyed and the land to be retained so that it could properly be said that the relevant advantage had been enjoyed with the land to be conveyed.

The leading case Long v Gowlett [1923] had said that there must be some diversity of ownership or occupation of the two parcels of land sufficient to attribute the acts relied on “not to mere occupying ownership, but instead to some advantage or privilege (however far short of a legal right) attaching to the owner or occupier of Whiteacre as such and de facto exercised over Blackacre.”

However the Court of Appeal said that:

1. there is no absolute bar to section 62 operating where land has been in common ownership and occupation. Diversity of occupation assist us to differentiate between cases where a landowner is just using their land as they wish, and cases where a use is in the nature of an easement or quasi¬easement enjoyed for the benefit of a particular part of the land. However, diversity of occupation is not essential and section 62 may be effective to transfer easements where the enjoyment of the rights claimed was continuous and apparent when the parcel of land was sold off.

2. The word “continuous” had become “all but superfluous” when the words “continuous and apparent” were juxtaposed with claims under the rule in Wheeldon v Burrows [1879] and under section 62.

Additionally under section 62 there was no requirement to show that the easement claimed was necessary for the reasonable enjoyment of the land (as is required under Wheeldon v Burrows).

What mattered was the extent to which there were visible signs of a track or road, and in this case there were adequate signs on the ground that the claimed routes had been continuous and apparent.

Section 62 only applies if the rights claimed are enjoyed with the land. So they must have been used for a reasonable period before the parcel of land was sold off.

The Court of Appeal then considered when, and how often, the tracks were used and said that the tracks being used approximately once per month met the requirements of section 62.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.