Properties, when leasehold, had acquired rights of way by prescription over neighbouring land. The freehold interests were acquired, and the claimant now appealed a decision that the right of way acquired under his lease had disappeared.
Held: ‘merger of the lease into a larger interest in the dominant tenement is not in itself fatal to the continued existence of the easement, for the period for which it was granted. The dominant tenement remains unchanged and there is no legal impediment to the continued enjoyment of the easement by the occupier for the time-being of that tenement. ‘ Under section 62, it is the occupier’s ‘enjoyment’ of the bundle of rights, rather than its legal source, which is material.
Mummery LJ, Carnwath LJ, Hooper LJ
[2007] EWCA Civ 444, [2007] 3 WLR 459
Bailii
Law of Property Act 1925 62 (2)
England and Wales
Citing:
Cited – International Tea Stores v Hobbs ChD 25-Apr-1903
Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in . .
Cited – Golden Lion Hotel v Carter 1965
A lease of a plot of land fronting a road contained a covenant by the lessor, who was also the owner of land with a hotel on the opposite side of the road, not to build on the hotel site except to a specified extent. Subsequently, the lessee . .
Cited – Graham v Philcox CA 1984
A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had . .
Cited – Birmingham Joint Stock Co v Lea 1877
The court considered whether a covenant in a lease survived its extinction: ‘though the old under-lease was gone it was clearly part of the arrangement that the defendant should remain subject to the covenant and that accordingly he remained bound . .
Cited – Lewis v Meredith 1913
Neville J discussed the attachment of an easement created under a leasehold interest becoming attached to the freehold interest: ‘Easement or right in the strict sense there could not be, for the common ownership precluded the acquisition of any . .
Cited – Graham v Philcox CA 1984
A right of way, originally granted in connection with a five year tenancy of a part of a house, was converted by section 62 into a permanent right of way on the conveyance of the freehold.
Lord Justice Purchas disagreed with the judge who had . .
Cited – Massey and Another v Boulden and Another CA 14-Nov-2002
The claimants said they had acquired a right of way by vehicle over land, a village green, having driven over it for more than forty years. It was responded that the act of driving over the land other than on a track had been an unlawful act, and as . .
Cited – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Cited – Rymer v McIlroy 1897
B, the freehold owner of Blackacre, granted a right of way over it to A, the lessee of Three-acre; one year later A acquired the freehold title to Three-acre and his leasehold interest then merged in the freehold; he subsequently leased part of . .
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .
Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.252390
