Section 62 LPA 1925: a tenant's permissive right becomes an easement on sale of the freehold

Section 62(1) LPA 1925 provides that a conveyance of land operates to convey with it all easements, rights and advantages appertaining to the land or, at the time of conveyance, enjoyed with it, unless a contrary intention is expressed (s.62(4)). In Kent v Kavanagh [2006] EWCA Civ 162 the Court of Appeal held that these words are apt to convey, with the freehold, rights of way over the retained land that are, at the time of the conveyance, enjoyed by the tenant in occupation of the land conveyed. Before the sale, Lena occupied the cottage and Hugo occupied the paddock, so there was diversity of occupation, and she was in fact enjoying the right of way. The informal and revocable nature of the permission does not prevent s.62 operating; this is the long-established effect of the section. The transfer therefore converted the permission into an easement. An easement created by s.62 is not an express grant requiring registration, so it is legal.

Why A is wrong: Section 62 can convert a precarious permission enjoyed with the land into an easement on a conveyance; revocability is no bar.

Why B is wrong: Necessity is a separate route; s.62 does not require the land to be landlocked.

Why C is wrong: Kent v Kavanagh treats rights enjoyed by a tenant as passing under s.62, rather than artificially treating the landlord as using them under Wheeldon v Burrows.

Why D is wrong: Prescription is unnecessary where s.62 has already operated, and use by permission would not count as use as of right.