Gore v Naheed [2017] EWCA Civ 369

Facts

  • The dispute arose between Mr. Gore and Ms. Naheed, owners of neighbouring properties sharing use of a driveway.
  • Mr. Gore had accessed the driveway to reach his property, as had Ms. Naheed.
  • On sale of Ms. Naheed’s property to a third party, Mr. Gore claimed a right of way over the driveway under Section 62 of the Law of Property Act 1925.
  • The High Court initially found for Mr. Gore, holding the right of way was transferred due to sufficient continuity and apparent use.
  • Ms. Naheed appealed, asserting the use was merely permissive and not as of right, therefore Section 62 did not apply.

Issues

  1. Whether Mr. Gore’s use of the driveway prior to the conveyance was sufficient to constitute “enjoyment with the land” under Section 62 of the Law of Property Act 1925.
  2. Whether Section 62 could operate to transfer a right of way that was exercised under permission, rather than as of right.
  3. Whether the prior use was continuous and apparent, or merely permissive, thus affecting the application of Section 62.

Decision

  • The Court of Appeal held that Section 62 does not transfer rights that are merely permissive; use must be as of right and sufficiently continuous and apparent.
  • The court found that Mr. Gore’s use of the driveway was permissive and did not constitute a legally enforceable easement.
  • Section 62 did not apply, and no right of way was transferred on the sale.
  • The appeal was allowed, overturning the High Court’s decision in favour of Ms. Naheed.

Legal Principles

  • Section 62 of the Law of Property Act 1925 operates to transfer existing rights and easements enjoyed with the land, provided they are continuous and apparent, not simply permissive.
  • The provision cannot be used to create new rights not previously exercised as of right.
  • For a right to be transferred under Section 62, there must be clear evidence of continuous, apparent, and non-permissive use before conveyance.
  • Distinction is drawn between “continuous and apparent” rights (which Section 62 can transfer) and rights exercised by mere permission (which it cannot).
  • Precise drafting in conveyancing documents is necessary to avoid unintended transfer or exclusion of rights.

Conclusion

The Court of Appeal’s judgment in Gore v Naheed [2017] EWCA Civ 369 clarified that Section 62 LPA 1925 cannot be invoked to transfer rights of way based solely on permissive use; only rights that are continuous, apparent, and exercised as of right will be included in a conveyance unless expressly excluded.

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