Kent & Anor v Kavanagh & Anor

On enfranchisement under the Leasehold Reform Act 1967, the first limb of the rule in Wheeldon v Burrows does not itself imply easements. In the absence of an express provision for a right of way, the rights passing with the freehold depend principally on section 62 of the Law of Property Act 1925.

Section 62 carries forward rights demised with or enjoyed by the enfranchising tenant where there is separate occupation. The statutory conveyance is also subject to tenant's incumbrances, preserving rights that bound the tenant. Reciprocal rights of way implied into adjoining leases under a building scheme therefore continue after both properties are enfranchised, regardless of which enfranchisement occurred first.

The claimants and defendants owned adjoining former leasehold houses. A three-foot path between the houses was divided along its mid-line, but each owner needed to cross the other's half to use it.

His Honour Judge Wakefield in the Central London County Court declared that the boundary lay along the mid-line and held that the claimants had a right of way over the defendants' half. He relied on non-derogation from grant and the rule in Wheeldon v Burrows. The defendants appealed. The central issue was whether a reciprocal right of way enjoyed under the original leases survived the statutory enfranchisement of both properties.

1. Appeal dismissed. Lord Justice Chadwick, with whom Lord Justice Longmore agreed, held that the judge reached the correct result but by an incorrect route.

2. The first limb of the rule in Wheeldon v Burrows did not apply to a conveyance required by section 8(1) of the Leasehold Reform Act 1967. Whether easements pass to the enfranchising tenant, absent an express grant under section 10(3)(a), depends on section 62 of the Law of Property Act 1925, supplemented where applicable by section 10(2)(i) of the 1967 Act.

3. Section 62 could operate because, immediately before conveyance, the enfranchising plot was occupied by a tenant while the adjoining plot was separately occupied. It carried forward rights demised with or enjoyed under the lease. Conversely, the conveyance required by section 8(1) was subject to tenant's incumbrances. Rights binding a tenant therefore remained binding after that tenant acquired the freehold.

4. The original leases had each included half of a narrow path. The intended use of the whole path required reciprocal implied grants and reservations. Applying Cory v Davies [1923] Ch 95, the court held that the 1909 leases contained reciprocal rights of way. Those rights were carried into the respective freeholds on enfranchisement.

5. It was unnecessary to determine whether the path was actually used in May 1976 or whether the 1995 request for permission made later user precarious. Mr Justice Lewison agreed, adding that enfranchisement should ordinarily carry forward both the rights enjoyed by, and the rights binding, the former leaseholder.

• Court of Appeal (Civil Division): Dismissed the defendants' appeal and upheld the declaration that the owners of No 56 had a right of way over the defendants' half of the path, though on a different legal basis.
• Central London County Court (His Honour Judge Wakefield): By order dated 14 March 2005, declared that the boundary lay along the mid-line of the path and upheld the claim to a right of way.