If you have a contrary intention, say so!
Browning v Jack and s.62 of Law of Property Act 1925
Depending on your perspective, in any given scenario s.62 of the Law of Property Act 1925 may be either:
(1) a very beneficial provision which ensures that a conveyance of land carries with it not only existing easements but also all associated rights which are then permissively enjoyed with the land but which fall short of easements, transforming them into easements; or
(2) a potential trap for the unwary which can elevate such informal, temporary rights into full, perpetual easements and which should be excluded to avoid the possibility of an unintended result.
As it is, there is no doubt that the operation of s.62 can be excluded. Section 62(4) says as much. It states that section 62:
“… applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained.”
However, more controversial has been quite how s.62 may be excluded.
The decision of the Upper Tribunal (Lands Chamber) in Browning v Jack  UKUT 307 (LC) now leaves us in no doubt that if s.62 is to be excluded, the contrary intention must be expressed in the conveyance itself. It cannot be derived solely from the surrounding circumstances.
Section 62 – overview
By way of reminder:
- Section 62 was designed to be a word-saving provision, to ensure that rights appurtenant to land were conveyed with the land without the need for extensive legal drafting.
- However, it has been established that s.62 goes further and can invest permissive rights with the status of legal easements on the occasion of a conveyance of land.
- Section 62, unless excluded, typically operates on a conveyance of part of a greater landholding, i.e. where the seller conveys some land but retains other adjoining land (over which the rights in question are enjoyed).
- If s.62 is not excluded on a conveyance of part, rights accommodating the land conveyed that are enjoyed over the retained land at the time of the conveyance will be treated as included in the conveyance even though they are not mentioned in terms in the conveyance.
- Because s.62 is (unlike the rule in Wheeldon v Burrows) not subject to any requirement that the easement be necessary for the reasonable enjoyment of the land, it is of wide application.
Exclusion of s.62
Often the contracting parties address in detail in the documentation they draft and execute the various easements which the property conveyed is to have in the future. In such cases they might perhaps be surprised to learn that – without more – additional, unexpressed easements may nonetheless be acquired by the property by virtue of the conveyance.
The solution, if it is intended to confine the rights benefitting the property to those set out in black and white in the conveyance, is to oust the operation of s.62. As noted above, s.62(4) authorises the parties to express a contrary intention and so to negate the operation of s.62.
Expressing the contrary intention can be done very easily, for instance by including a clause in a transfer deed to the effect that “Section 62 of the Law of Property Act 1925 does not apply to this transfer.” No specific form of words is prescribed or required, provided that the contrary intention is clear.
Despite the fact that it is straightforward to sidestep s.62 in this way, sometimes this is not done, whether deliberately or quite possibly inadvertently. The default position is then that s.62 will bite, always assuming the basic conditions for its application are met. This may then see the seller try to play ‘catch-up’ after the event and to contend that the overall circumstances surrounding the sale were such as constituted a ‘contrary intention’ for the purposes of s.62(4). The question is whether such an argument can succeed.
Browning v Jack – the story
Lower Clennick Farm consists of a cottage (the Cottage) and 22 acres of pasture (the Land).
Lower Clennick Farm used to be part of Higher Clennick Farm.
In December 1994 the Land was sold-off from Higher Clennick Farm and conveyed to a Mr Pote. In March 1995 he similarly acquired (this time by a deed of gift) the Cottage.
The Brownings came to own both the Cottage and the Land. The Respondents came to own the residue of Higher Clennick Farm.
At the time of the 1994 and 1995 transactions a farm lane (the Brown Track) served both the Cottage and the Land. Access to the Cottage was obtained by crossing the Land. The Brown Track was not conveyed together with the Land or the Cottage. It remained part of Higher Clennick Farm.
In the litigation the Brownings claimed: (a) an easement (a right of way over the Brown Track) for the Land pursuant to the 1994 conveyance; and, separately, (b) an easement (a right of way over the Brown Track) for the Cottage pursuant to the 1995 deed.
Neither asserted easement had been created expressly. The instruments were silent in this respect.
The right claimed for the Cottage was said to have arisen by virtue of s.62.
That for the Land was sought under the (similar, though not identical, and non-statutory) rule in Wheeldon v Burrows. Section 62 was not relied on in this context because the 1994 conveyance had expressly excluded the operation of s.62.
The Wheeldon v Burrows claim
The FTT rejected the Wheeldon v Burrows claim in respect of the easement for the Land. It held a fencing covenant in the 1994 conveyance (compliance with which, although it had never been insisted on, would have prevented access from the Land to the Brown Track) was inconsistent with creation of such an easement.
The Upper Tribunal dismissed this part of the Brownings’ appeal. The fencing covenant required the installation of a fence which was just the width of the Brown Track. As such, the covenant appeared to have been deliberately designed to cut off access via the Brown Track. Hence no easement was implied by Wheeldon v Burrows.
The s.62 claim
As for the s.62 claim in favour of the Cottage, the Brownings were on a more promising footing. This was because, unlike the 1994 conveyance, the 1995 deed had not expressly excluded s.62.
Nonetheless, the Brownings failed in the FTT. The judge held that the fencing covenant in the 1994 conveyance manifested a contrary intention under s.62(4) for the purposes of the 1995 deed. In his view, it would have made no sense to preclude a right of way via the Brown Track (to the Land) in December 1994 and yet to grant such a right of way (to the Cottage, via the Land) just 3 months later. He regarded the covenant as rebutting the operation of s.62.
However, in a reversal of fortune, the Upper Tribunal sided with the Brownings and allowed this part of their appeal.
The Upper Tribunal held that:
- The words of s.62(4) are clear: for the operation of s.62 to be defeated by evidence of a contrary intention, that contrary intention must be expressed in the conveyance itself. It cannot be deduced from the surrounding circumstances alone.
- The authorities are equally clear to this effect.
- The focus must therefore always be on reading the text of the grant.
- The statement in Megarry & Wade, The Law of Real Property, 9th ed. that s.62 might be ousted by contrary intention implied from surrounding circumstances is wrong or, at least, ambiguous and would benefit from revision.
- The contrary statement in Gale on Easements, 21st ed. that s.62 cannot be ousted by an alleged contrary intention derived from the surrounding circumstances of the case is correct.
On the facts, because the 1995 deed did not itself exclude s.62 and the only possible basis for the exclusion of s.62 was something wholly outside the deed (namely, the fencing covenant in the 1994 conveyance), the result was that s.62 did apply to the 1995 deed so that the Cottage (but not the Land) benefitted from a right of way over the Brown Track.
Indeed, in practical terms, by failing to exclude s.62 in the 1995 deed, the owners of Higher Clennick Farm had lost their ability to require the track to be permanently closed.
The decision in Browning v Jack is a useful reminder of the potential for possibly unintended consequences if s.62 is not expressly excluded. It is at least debatable whether those concerned envisaged that, despite having agreed in December 1994 that the access over the Brown Track would be sealed off, a right of access over the very same track would arise in March 1995. However, that was the legal consequence of their dealings. (Of course, if the fencing covenant had been enforced at the outset, the access provided by the Brown Track to the Cottage would have ceased to be enjoyed as a matter of fact by the time of the deed of gift. This would have stopped s.62 from applying. As it was though, that was not the case.)
What is more, the decision helpfully clarifies the legal position and resolves an apparent contradiction between the commentary in two leading textbooks. It confirms that nothing less than an expression of a contrary intention for the purposes of s.62(4) in the conveyance itself will suffice. Opposition to the operation of s.62 cannot be maintained merely by pointing to extraneous circumstances.
The Upper Tribunal’s decision underscores the importance of spelling out any intended exclusion of s.62 in clear and unmistakeable terms. Failure to do so will likely see s.62 operate with full force and effect. Reliance on surrounding facts and matters alone as a supposed pointer against the application of the statute is unlikely to be successful.
However, this is not to say that surrounding circumstances may have no part whatsoever to play in the analysis. It remains the case that, as with any contract, the interpretation of a conveyance involves reading its wording in context. The instrument will be construed in the light of such relevant surrounding circumstances as are admissible as an aid to its meaning. Its language is not to be read in a vacuum but with regard to geographical and commercial realities.
But what the decision emphasises is that, while surrounding circumstances may inform the meaning of a deed, they by themselves cannot rule the day when it comes to manifesting a contrary intention in relation to s.62; there must be something in the deed itself (albeit construed in the light of such circumstances) which evinces the requisite contrary intention if s.62 is indeed to be displaced.
Surrounding circumstances may therefore retain a limited and supplementary role. They may be used to construe what is expressed in a deed to decide whether the deed indicates a contrary intention. However, they can have no freestanding role; they alone cannot show the contrary intention.
When drafting a conveyance, consider carefully if s.62 is intended to be excluded from the transaction. If ‘yes’, exclude it expressly in clear terms in the deed. Do not leave matters to implication or chance. Any assumption that surrounding circumstances will sidestep s.62 is likely to be unsafe and unsound.
MARTIN DRAY FCIArb
13 December 2021
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