Making Land Work: Easements, Covenants and ... - Law Commission

3.57 Section 62 overlaps to some extent with the rule in Wheeldon v Burrows because
it can transform into an easement a quasi-easement such as the one represented
in the diagram above. 56 The quasi-easement was an advantage enjoyed with the
property. The section writes into the conveyance something like “the right to pass
on foot over the path across field 2”, and the deed therefore grants a legal
easement. 57 The overlap is not complete; while section 62 operates only where
there is a conveyance, Wheeldon v Burrows will operate where there is only a
contract, or where the quasi-easement was being enjoyed at the time of the
contract but not of the conveyance.
3.58 Section 62 is discussed in some texts as part of the law of implication, because it
creates easements where the parties to a transaction did not draft wording in
order to do so, and indeed overlaps with one form of implication. However, it is
not implication, because it deems a conveyance to have included a right among
its express terms; 58 and it differs from implication in that it operates neutrally,
without regard to intention or necessity.
Reform of section 62 of the Law of Property Act 1925
3.59 In the Consultation Paper we noted that section 62 is a trap for the unwary, as
well as being uncertain in its effect and in the extent to which it overlaps with
Wheeldon v Burrows. 59 There have been numerous expressions of dissatisfaction
with the section’s transformation of precarious rights into legal interests. 60 It may
prevent important rights from being lost; but it does so only when the facts fit a
particular pattern, and it may equally preserve unimportant arrangements,
converting a friendly permission into a valuable property right, contrary to the
56 See para 3.20 above.
57 In these circumstances the position seems to be that the quasi-easement will have to be
shown to have been continuous and apparent, unless there was diversity of ownership and
occupation prior to the conveyance: Long v Gowlett [1923] 2 Ch 177; Sovmots Investments
Ltd v Secretary of State for the Environment [1979] AC 144; C Harpum, “Easements and
Centre Point: Old Problems Resolved in a Novel Setting” [1977] Conveyancer and
Property Lawyer 415.
58 The authors of both Gale on Easements and Megarry and Wade distinguish rights created
by implication and those arising from operation of the LPA 1925, s 62. Gray and Gray, para
5.2.40, n 1, discusses section 62 as part of its treatment of implication, but concedes that it
may be more accurate to describe its operation as “by way of express grant”.
59 Consultation Paper, paras 4.74 to 4.77.
60 See, for example, Hair v Gillman (2000) 80 P & CR 108, 116, by Chadwick LJ;
Commission for the New Towns v JJ Gallagher Ltd [2002] EWHC 2668, (2003) 2 P & CR 3
at [61] by Neuberger J. See also L Tee, “Metamorphoses and Section 62 of the Law of
Property Act 1925” [1998] Conveyancer and Property Lawyer 115.
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