Kent & Anor v Kavanagh & Anor

Kent & Anor v Kavanagh & Anor

The right of way over the pathway arose by implication in and from the 1909 lease (by reason of the common law doctrine of non-derogation from grant) and the 1976 conveyance (by reason of section 62 of the Law of Property Act 1925). Both properties were entitled under their leases to reciprocal rights of way over the pathway, and these rights were carried through to the freehold on enfranchisement. The rule in Wheeldon v Burrows does not apply to statutory enfranchisement, but section 62 does. The appeal is dismissed.

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
Civil Appeal / Appeal From Central London County Court to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Easements, Leasehold Enfranchisement, Implied Rights of Way, Section 62 Law of Property Act 1925, Wheeldon V Burrows Rule, Leasehold Reform Act 1967
Property Law Landlord and Tenant Law Easements Leasehold Enfranchisement Implied Rights of Way Section 62 Law of Property Act 1925 Wheeldon V Burrows Rule Leasehold Reform Act 1967

Case Brief

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Parties

John Martin Kent and Philippa Kent

Claimants/respondents

Matthew Kavanagh and Marianne Morgan Kavanagh

Defendants/appellants

Procedural Posture

Civil Appeal / Appeal From Central London County Court to Court of Appeal

Legal Issues

  1. 1 Whether the owners of No 56 Dovercourt Road are entitled to a right of way over the part of the pathway within the ownership of No 58 after enfranchisement under the Leasehold Reform Act 1967
  2. 2 Whether such a right arises by implication, prescription, necessity, or statutory provision

Ratio Decidendi

The right of way over the pathway arose by implication in and from the 1909 lease (by reason of the common law doctrine of non-derogation from grant) and the 1976 conveyance (by reason of section 62 of the Law of Property Act 1925). Both properties were entitled under their leases to reciprocal rights of way over the pathway, and these rights were carried through to the freehold on enfranchisement. The rule in Wheeldon v Burrows does not apply to statutory enfranchisement, but section 62 does. The appeal is dismissed.

Court Disposition

Appeal dismissed

Orders

  • Declaration that the owners of No 56 Dovercourt Road are entitled to a right of way over the part of the pathway within the ownership of No 58 Dovercourt Road, and vice versa, as reciprocal easements arising from the original leases and carried through on enfranchisement.