Payne v Inwood (1996) 74 P & CR 42
Court: Court of Appeal.
Facts
The dispute concerned neighbouring terraced houses, Nos 1 and 1A, and a claimed right of way through the back yard of No. 1. Inwood, the owner of No. 1A, claimed the right to use a connecting doorway and the route alongside the adjoining house. The Paynes disputed that right.
The properties had previously been in common ownership. The claim depended on whether a right of way had passed when No. 1A was conveyed separately in October 1971. The relevant route had not been used for the benefit of that property between June 1969 and the conveyance.
Issue
Could section 62 of the Law of Property Act 1925 create the claimed easement on that conveyance? The physical existence of a doorway had to be considered alongside the evidence of how the properties had actually been used.
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Reasoning
Roch LJ explained that section 62 could convert an existing quasi-easement into a legal easement. A quasi-easement is an arrangement under which one part of a property is used for the benefit of another while both are in common ownership. Its existence could be shown by use or by physical features indicating that arrangement.
But section 62 did not create a new right in the absence of the necessary prior enjoyment. Here the evidence did not establish the required use of the route with No. 1A before the relevant conveyance. The doorway did not justify inferring a right of way that the evidence otherwise failed to establish.
The court also relied on the absence of separate occupation of the two properties during the relevant period before sale, applying the general rule discussed in the authorities on section 62.
Decision
The appeal was allowed and the claimed right of way failed. The decision turned on the position before the 1971 conveyance. Later access through the doorway could not establish that the claimed easement had been created by that earlier transaction.
References: Payne v Inwood (1996) 74 P & CR 42, especially 47 and 51; Roch LJ’s reasons quoted in Campbell v Banks [2011] EWCA Civ 61, paragraphs 37–38.
