Kent v Kavanagh [2006]

Kent v Kavanagh [2006] EWCA Civ 162

Easement – Right of Way – Adjacent plots – Whether tenants have right of way under leases

Facts:

Freehold owners entered into a building agreement with a firm of builders who erected a road of semi-detached houses on an estate. The houses 56 and 58 shared a path so they could access their gardens. When the property was conveyed, the tenants had not required an express right of way be included in the conveyance under s 10(3)(a) of the Leasehold Reform Act 1967. The freehold owners many years later brought a claim that they were entitled to the right of way on foot over the part of the pathway that was within the title of number 58.

Issues:

Whether the tenants, having right of way under the leases over half of the pathway within the other plot could be considered to be an implied easement right of way over the other half of the path.

Held:

Wheeldon v Burrowswas distinguished, having no application because at the time of the conveyance, the land retained was not in common occupation. Thus, the rule had no common application to a conveyance executed to give effect to a landlord’s obligation to enfranchise under s 8(1) of the Leasehold Reform Act 1967. The appeal was dismissed. When the leases were initially granted, the landlord included one half of the pathway in each of the leases. The tenants could not use one half of the path without crossing over the other half. It was concluded that although there was a technical breach of the lease by the parties when crossing the other’s path, that would have been agreed between the parties that the path would be used and shared in that way, granting one another reciprocal rights of way.