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Full case name (1) John Martin Kent and (2) Philippa Kent v (1) Matthew Kavanagh and (2) Marianne Morgan Kavanagh Citation(s) [2006] EWCA Civ 162, [2006] 2 All ER 765, [2007] Ch 1 | ||
Kent v Kavanagh [2006] EWCA Civ 162 is an English land law case, concerning easements.
Contents
Facts
Constructed in 1907, numbers 56 and 58 in a semi detached housing estate were built with a path between them, giving access from a road to the back gardens. The boundary between the two was the mid line of the path. On 14 May 1976 the estate owners sold number 56 to the tenants under the Leasehold Reform Act 1967 section 8 to give effect to the tenants’ rights to enfranchisement. The tenants had not required an express right of way be included under LRA 1967, section 10(3)(a). On October 1976 the estate owners sold number 58 to that house’s tenants. In 2003, the occupants of number 56 sued number 58 for a right of way.
The Judge rejected the claim that the right appertained to number 56 under Law of Property Act 1925, section 62(2) because there was no evidence the path was used for gaining access to the back garden at the time of the conveyance. But he accepted an easement over the path should be implied into the 14 May 1976 conveyance under Wheeldon v Burrows because it was necessary for reasonable enjoyment.
Judgment
Chadwick LJ held that there was no difficulty in implying into each lease the grant and reservation of reciprocal rights to share the pathway. Wheeldon v Burrows did not apply where between the land conveyed and the land retained, there was common ownership, but not common occupation. There needed to be both. The rule did not apply to give effect to a landlord’s obligation to enfranchise under Leasehold Reform Act 1967, section 8(1).