Kent & Anor v Kavanagh & Anor [2006] EWCA Civ 162 (02 March 2006)

Kent & Anor v Kavanagh & Anor [2006] EWCA Civ 162 (02 March 2006)

The rule in Wheeldon v Burrows does not apply to conveyances executed to give effect to the obligation imposed by section 8(1) of the Leasehold Reform Act 1967. Section 62 of the Law of Property Act 1925 may operate to convey rights of way enjoyed at the time of conveyance, but the evidence did not establish continuous use at the relevant time. The claim for a right of way by prescription failed due to permission being sought in 1995. The claimants are not entitled to a right of way over the path under the rule in Wheeldon v Burrows or section 62.

Citation
[2006] EWCA Civ 162
Parties
Claimants/respondents: John Martin Kent and Philippa Kent; Defendants/appellants: Matthew Kavanagh and Marianne Morgan Kavanagh
Jurisdiction
England and Wales
Judgment Date
02 March 2006
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Easements, Implied Rights of Way, Leasehold Enfranchisement, Section 62 Law of Property Act 1925, Wheeldon V Burrows Rule, Adverse Possession
Property Law Land Law Easements Implied Rights of Way Leasehold Enfranchisement Section 62 Law of Property Act 1925 Wheeldon V Burrows Rule Adverse Possession

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Parties

John Martin Kent and Philippa Kent

Claimants/respondents

Matthew Kavanagh and Marianne Morgan Kavanagh

Defendants/appellants

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the claimants are entitled to a right of way over the part of the path not within their ownership under the rule in Wheeldon v Burrows, section 62 of the Law of Property Act 1925, prescription, or necessity;
  2. 2 Whether the Leasehold Reform Act 1967 affects the application of the rule in Wheeldon v Burrows or section 62;
  3. 3 Whether the right of way was extinguished by adverse possession or permission.

Ratio Decidendi

The rule in Wheeldon v Burrows does not apply to conveyances executed to give effect to the obligation imposed by section 8(1) of the Leasehold Reform Act 1967. Section 62 of the Law of Property Act 1925 may operate to convey rights of way enjoyed at the time of conveyance, but the evidence did not establish continuous use at the relevant time. The claim for a right of way by prescription failed due to permission being sought in 1995. The claimants are not entitled to a right of way over the path under the rule in Wheeldon v Burrows or section 62.

Court Disposition

Appeal allowed

Orders

  • The declaration of a right of way in favour of the claimants is set aside.
  • No right of way exists over the part of the path not within the claimants' ownership under the Wheeldon v Burrows rule or section 62.