Thomas Lewis of WBW instructing Robin Howard of 3PB, who acted for the successful Claimant, provides the following case note:

Facts

  1. In 1938 Captain Quelch purchased cottages in Ilsington, Devon, including 1 – 3 St Michael’s Cottages and 1 & 2 Shamrock Cottages. He made the cottages habitable and let them to tenants. A 4-cubicle privy was provided for the use of the tenants.
  2. On 1 September 1967 Captain Quelch’s widow sold 1 St Michael’s Cottages ‘1SMC’ out of common ownership. The sale of 1SMC included the privy, which by then had been converted into a store. In 2016 the Claimant purchased 1SMC.
  3. There is no access to the store from within 1SMC. The only access is via a gate over 2 Shamrock Cottages, owned by the Defendants.
  4. In 2020 the Defendants claimed adverse possession of the store. The claim was later abandoned.
  5. The Defendants then blocked the gate and padlocked the store to prevent access. The padlock was later removed by the Defendants, but the gate remained blocked by them preventing the Claimant from accessing the store.

Claims

  • The Claimant brought claims for declarations, injunctions and damages in respect of the right of way. A further claim in respect of the common boundary between the parties’ properties was conceded by the Defendants at trial.
  • The claim to the right of way included reliance on the 1967 conveyance and/or section 62(2) of the Law of Property Act 1925. The 1967 deed conveyed 1SMC: ‘… with the benefit of all rights of way water light drainage support and other privileges in the nature of easements or quasi-easements exercised over the property hereby conveyed and the adjoining or neighbouring properties’.
  • By section 62 the 1967 conveyance is deemed to include and operate to convey with the land all: ‘ways …easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, 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, houses, or other buildings conveyed, or any of them, or any part thereof’. 
  • The occupation of the cottages by tenants from 1938 meant that the right to access to the privy via the gate and path were exercised relative to each other’s holdings as quasi-easements. That remained unaltered when it was converted to use as a store before 1967.
  • Use of the store necessarily involves use of the right of way. The right of way was required for the Claimant in order to access her property and known to her neighbours.
  • User for almost 30 years, when the store was the privy, left the owner of the servient tenement, 2 Shamrock Cottages, fully aware by 1967 that the right was appurtenant to 1SMC.  
  • The seller in 1967, Mrs Quelch, retained the servient tenement, 2 Shamrock Cottages. She conveyed the store and the right to access it. It would have been a derogation from grant and defeat the object of the conveyance if no effective means to reach the store were provided.

The Decision

  1. HHJ Walsh in an ex tempore Judgment accepted the evidence of the Claimant and held in her favour. The Judge cited Roch LJ in Payne v Inwood, (1996) 74 P&CR 42 at 47: ‘If there is a quasi-easement, in that there is evidence of user or a physical state of affairs which indicates the existence of a quasi-easement, then s.62 can operate to convert that into an easement’.
  2. Section 62 is not confined to a single moment of time but a ‘reasonable period of time’ before the grant in order to see whether there was anything over that period which could be called a ‘pattern of regular user’ (Cross J, Green v Ashco Horticulturalist Ltd [1966] 1 W.L.R. 889 at 898G). ‘One must look at a reasonable period of time before the conveyance was made to see if there were any apparent or regular user…Left alone, reputations did not die in a day’ (Megarry J, Costagliola v English (1969) 210 EG 1425 at 1427). These dicta were approved in Pretoria Warehousing Co Ltd v Shelton [1993] EGCS 120.
  3. A physical state of affairs existed at the cottages. There was a reputation and a pattern of use. The quasi-easement was obvious and apparent, given the need to access the privy / store and lack of internal access. The right was appurtenant to the land conveyed in 1967. The Judge found that 1SMC was unlikely to have been vacant for long after the tenant vacated or died. Sale would have followed soon after. The right of way was declared to transform the quasi-easement into a full easement.

If you have any questions relating to rights of way, adverse possession or other property related disputes please contact  Thomas Lewis, who is a member of the Property Litigation Association in the dispute resolution team – thomaslewis@wbw.co.uk or 01392 260140.