Sale of part of land: inferred easement and abandonment of an easement

Re Clarke ([2012] UKUT 226 (LC) was concerned with the valuation of the freehold of property to be acquired by the tenant under the Leasehold Enfranchisement Act 1967. The question was whether, for valuation purposes, the property was landlocked. The tenant held the property under the terms of a 400 year lease granted in 1641 (‘the lease’). The tenant also owned the freehold of property to the south. The lease included both the property in question (a house) and other land to the north of the house. The tenant under the lease had the benefit of rights of way over land further to the north but there was no visible track or path in existence.

In 1946, part of the lease (the part on which the property stood) was assigned to T and the freehold of land to the south (‘the pink land’) was conveyed to T. The land to the south had the benefit of a right of way over a track leading to the public highway. This express grant did not, however, benefit the property. As long as the property and the pink land were (as now) in common ownership there was no practical problem since the owner of the property could simply cross the pink land to access the public highway to the south of it. For the purposes of the valuation of the freehold of the property, however, this was irrelevant unless the property had a legal right of way.

The Tribunal found that there was no inferred right of way over the pink land and the track that crossed it. The most plausible argument was an easement of necessity but this failed because of the fact that the common ownership of the property and the pink land meant that the property did have the right to cross the pink land.

It was likely that, legally speaking, the property had the benefit of an easement over the rest of the leasehold land to the north. The fact that no use had been made of the rights of way to the north for over 50 years did not mean that there had been an abandonment. The non-use was explicable on the basis of the practical alternative access over the pink land to the south.

Nevertheless, the freehold should have been valued on the basis that it was landlocked. A buyer might face litigation if it tried to exercise rights over land to the north and there would be severe planning difficulties in the way of constructing a useable road.

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