S.62 LPA 1925: restating the case for reform

• Author: Michael W. Poulsom
• Position: Manchester Law School, Manchester Metropolitan University, Manchester, UK
• Pages: 79-91

S.62 LPA 1925: restating the

case for reform

Michael W. Poulsom

Manchester Law School, Manchester Metropolitan University,

Manchester, UK

Abstract

Purpose –The purpose of this paper is to explore how S.62 LPA 1925 and its equivalent provisions in other

jurisdictions have been interpreted as having the capacity to create new easements. It is intended to identify

that the theoretical justication for this interpretation can be viewed as awed, and that its practical

implications are unsatisfactory. It intends to restate the need for reform and to challenge arguments that this

interpretation is correct and justied.

Design/methodology/approach –This paper examines and analyses the origins of the principle that

S.62 LPA 1925 can create new legal rights, consider similar provisions from other jurisdictions, examine recent

attempts to justify the creative effect of the section and offer observations on proposals for reform.

Findings –It is found that the ability of S.62 LPA 1925 to create legal easements from precarious rights has

been replicated in many jurisdictions, has been widely criticised as both incorrect in principle and problematic

in practice and has been the subject of well-reasoned and workable proposals for reform for more than 40

years.

Originality/value –From both theoretical and property practitioner perspectives, this paper highlights

the lack of justication for the principle that S.62 LPA can create easements from precarious rights, challenges

the arguments for retaining the principle and offers practical proposals drawn from several jurisdictions as to

how the section and its equivalent provisions abroad could be reformed.

Keywords Reform, Licences, Creation of easements, Easements, Implied easements, S.62 LPA 1925

Paper type Research paper

Background

A common land transaction is the transfer of part of a larger title. In the last three months of

2016, the Land Registry for England and Wales received over 40,000 applications to register

transfers of part[1]. In each case, consideration will need to have been given to whether

easements, for example, rights of way, rights of drainage and rights to run services, were

required over the land retained in favour of the land transferred, and if so, on what terms.

In the case of a professionally-drafted transfer, these rights (rights of way, rights of

drainage and rights to run services) are likely to have been discussed in detail by the parties

to the transfer and their advisers, and appropriate provisions granting those rights will have

been included in the transfer deed. The Law Society’s Conveyancing Handbook advises that

on a transfer of part, “It will […] usually be necessary to grant new express easements to the

buyer e.g. for a right of way or drainage” (The Law Society, 2015, p. 664).

On any transfer of land, including a transfer of part of a larger title, Section 62 of the Law

of Property Act 1925 (“S.62”) will apply, unless contrary intention is expressed in the

conveyance. The heading for S.62 is (signicantly, it is argued) “General words implied in

conveyances”. S.62(1) provides:

A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey,

with the land, all […] ways […] easements, rights, and advantages whatsoever, appertaining or

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Case for

reform

79

Received 14 September 2016

Revised 1 February 2017

Accepted 9 February 2017

InternationalJournal of Law in the

BuiltEnvironment

Vol.9 No. 1, 2017

pp.79-91

©Emerald Publishing Limited

1756-1450

DOI 10.1108/IJLBE-09-2016-0012