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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 (significantly, 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 reputed to appertain to the land, or any part thereof, or, at the time of the conveyance, demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land [...].
This is a "word-saving" provision. It removes the need to set out in full all the existing rights benefitting a piece of land in a conveyance of that land. However, on the transfer of part of a larger title, it has another effect which has been described variously as "surprising" (Gray and Gray, 2009, p. 659), "startling" (Tee, 2015) and perhaps most worryingly for practitioners conscious of the risks inherent in transactional property work, and aspiring to offer clear advice, "capricious" and having...