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Payne v Inwood (1997) 74 P & CR 42;

EASEMENT, RIGHT OF WAY, CREATION OF RIGHT OF WAY, NO ACTUAL USE, BLOCKED ACCESS, ADJOINED HOUSES

Facts

The plaintiff and the defendant owned properties situated in a terrace of three cottages. The plaintiff purchased the freehold of No. 1A in 1981 and took up residence there. The defendant purchased the adjoining house – No. 1 in 1989. Access to the plaintiff’s house could be achieved either by passing through the house itself or via a path running alongside the defendant’s house. Between 1964 and 1969, a door existed between the two properties and was used for social visits between the occupiers back then, but was subsequently blocked. Between May 1970 and October 1971, the two properties were owned by C, who occupied them only for a week in October 1971 and used the path alongside No. 1 to have coal delivered. Then the ownership was conveyed to W. When the plaintiff acquired the property in 1981, he unblocked the door in order to use the path. In 1991, the defendant stopped the respondent from using the door. The plaintiff claimed the right to use it for access to the path alongside the defendant’s house to the road, pursuant to s. 62(2) Law of Property Act 1925, arguing that the right was created by virtue of the conveyance of No. 1A from C to W. The High Court ruled in favour of the plaintiff. The defendant appealed to the Court of Appeal.

Issue

Was the right of way conveyed, when the ownership of 1A passed from C to W under s. 62(2) Law of Property Act 1925?

Held

The appeal was allowed.

(1) There was no evidence that the right of way existed prior to C’s acquisition of No. 1A and even if there had been such evidence, the right of way would have ceased to exist at the point when C briefly occupied the two properties. Therefore, the easement was not conveyed when the ownership of 1A passed from C to W.

(2) S. 62(2) Law of Property Act 1925 is capable of converting a quasi-easement into an easement, but not create new rights where there has not been actual use.


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