CPO s.16 only operates where the right claimed had actually been exercised

Payne v Inwood ((1997) 74 P & CR 42 CA (Eng)) concerned a dispute between two neighbours, the owners of 1 and 1A Teign Terrace (adjoining terraced houses). 1 Teign Terrace was the end of the terrace. The owners of 1A claimed that they had an easement across the rear of number 1 to get to the rear of 1A. There was a gate in the fence between 1 and 1A. This had been made by the owner of number 1 to make it easier for him and his neighbour to visit each other. For a short time, 1 and 1A were in the common ownership of Miss C and this had the effect of extinguishing any easement that might have existed over 1 for the benefit of 1A. There was no evidence that at that time or subsequently the owners of 1A had gained access to the rear of 1A over the rear of 1. Thus, there was no existing privilege that could pass by virtue of the combined operation of the English equivalent of CPO s.16 and the conveyance of 1A by Miss C. CPO s.16 does not create new rights but is a conveyancing mechanism to pass on (in appropriate cases) such rights as may already exist.

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