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Payne v Inwood (1996) 74 P & CR 42

Real Property - Right of Way - Relevant period - Access to Property

Facts:

Payne and Inwood owned terrace houses 1 and 1A respectively. Prior to the parties’ acquisition, a door had been constructed for access to the rear of the parties’ gardens. The door handle was on Inwood’s side of the fence but had not been used while the parties had owned their respective properties. Inwood believed they had a right to access the rear of Payne’s property as per a description included in the particulars of the sale. The Paynes sought an injunction to stop Inwood using the rear access and appealed when the injunction was not granted.

Issues:

Whether the door enabling access to the rear of the property created a right under s 62 Law of Property Act 1925 (the Act), and whether common ownership and occupation extinguished any prior rights of access.

Held:

Allowing the appeal, it was held that the judge had misdirected the decision on law and fact. Section 62 of the Act could not operate to create new rights where there had been no actual enjoyment of the land by the owner of the dominant tenement over the servient tenement. There could be no implied easement as that would constitute drawing an inference where there was no entitlement for one to be drawn. If there had been evidence of a right of way as claimed prior to Inwood purchasing the property, it would have ceased to exist when the prior owner had occupied both of the terrace houses with the access point. Therefore, there was no right of way that could have been created under s 62, and any previous rights of access had been extinguished when Inwood had purchased the property.


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