Easement granted to tenant annexed to conveyance of freehold

Where L grants a lease to T together with the benefit of a right of way over other land of L (the servient tenement) then the right of way is annexed to L’s later conveyance of the reversion (provided L still owns the servient tenement at the time of that conveyance). This is true provided no contrary intention is expressed.

In Graham v Philcox ([1984] QB 747, CA (Eng)) M owned a large house, a garden and a coach house. In simplified terms, M granted a lease of the first floor of the coach house to D. D’s lease also contained a right of way over M’s retained land. M’s successors in title later conveyed the freehold title in the coach house to G. G claimed the benefit of the right of way. M’s successors argued that this was only for the benefit of the owner of the lease and not for the benefit of the owner of the freehold. They failed. The English Court of Appeal held that an English statutory provision similar to section 16(1) of the Conveyancing and Property Ordinance passed the benefit of the easement to G as owner of the freehold. Where L grants a lease to T together with the benefit of a right of way over other land of L (the servient tenement) then the right of way is annexed to L’s later conveyance of the reversion (provided L still owns the servient tenement at the time of that conveyance). This is true provided no contrary intention is expressed.

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