Loveluck-Edwards & Anor v Ideal Developments Ltd. & Anor

Statutory implication of an easement under Law of Property Act 1925, section 62, requires proof that the claimed right was enjoyed with the conveyed land at the date of conveyance. Later use cannot establish that historical fact where the evidence remains speculative. The same evidential difficulty may defeat implication under Wheeldon v Burrows and an easement based on common intention.

Prescription requires use as of right: use must be nec vi, nec clam and nec precario. Reciprocal oral permission, maintained on a common understanding that use is permissive, prevents acquisition by prescription, including under the 40-year period in the Prescription Act 1832. A statutory prescriptive period must also run immediately before the action and without an effective interruption.

The claimants, owners of Broadlands House, claimed a vehicular and pedestrian right of way over Broadlands Lane and land forming part of Broadlands Fawr Farmhouse. They relied on the 1920 conveyance, statutory general words, implied grant, lost modern grant and the Prescription Act 1832.

The two areas of alleged servient land were owned by separate defendants. The principal questions were whether the right was enjoyed or used at the date of the 1920 conveyance, whether it was necessary for reasonable enjoyment or a common intention, and whether later use was as of right rather than permissive.

1. Claim dismissed. The claimants failed to establish any claimed right of way and therefore were entitled to neither an injunction nor damages. The second defendants’ Part 20 claim did not arise.
2. Section 62 of the Law of Property Act 1925 could operate only if the claimed right was enjoyed with the land and buildings at the date of the 1920 conveyance. The burden was on the claimants to prove that fact on the balance of probabilities. The conveyance’s silence was not itself a contrary intention under section 62(4), but it could be evidence when determining the historical facts. The available evidence made the 1920 position speculative, so the claim failed.
3. The claim also failed under Wheeldon v Burrows, because the claimants had not proved that the alleged quasi-easement was used and enjoyed, or continuous and apparent, at the time of the conveyance. The common-intention principle likewise did not assist: access was not shown to be necessary for use of the property as a dwelling house, outbuildings and grounds.
4. Use from 1967 to at least 2002 was pursuant to reciprocal oral permissions between the adjoining owners. It was therefore precarious and not use as of right. The arrangement was more than mere acquiescence, although it did not necessarily create reciprocal contractual licences.
5. For the 40-year claim under section 2 of the Prescription Act 1832, the continuing common understanding that use was permissive defeated the claim. In any event, the statutory periods had to run immediately before the action. The obstruction before July 2004, followed by consent to or acquiescence in it for more than a year, interrupted the relevant use under section 4.
6. Obiter, if a right had been established, the judge would have treated the barriers as actionable disturbances but would have awarded damages in lieu of injunction, assessed notionally at £75,000. The judge would not have accepted that redevelopment had radically changed the dominant tenement or substantially increased the burden.