It is not uncommon to find old buildings in Central London relying on a secondary means of escape over adjoining property, based on an old Deed providing for a right of escape (sometimes mutual). It can be very difficult, especially post Grenfell, to make an old building compliant with a single staircase means of escape, if the secondary means of escape ceases for any reason. Firstly, it may not be possible (for e.g. the single staircase may not have sufficient capacity), secondly, the cost may be prohibitive and/or thirdly it may restrict the potential uses of the building in the future.
Beware of such Deeds, which purport to bind successors in title of the adjoining property, because they might not in fact bind successors. You may end up purchasing a property, which on the face of it has a secondary means of escape, but if the Deed is phrased as a licence rather than an easement, it won’t actually have a secondary means of escape anymore, where there has been a subsequent disposal of the adjoining property.
The case of IDC Group Ltd and others v Clark acutely highlights the importance of checking the property you are purchasing has an adequate right of secondary means of escape.
In 1969 an opening was made in the dividing wall between the properties 22 St. James’ Square, London (including the properties behind it in Pall Mall Nos. 30-35) and 23 St. James’ Square. This opening was made with the ‘licence and consent’ of the owners. The licence permitted (inter alia) to the occupiers, “for the time being of no 23 … to pass through the said opening and doorway in case of fire only and in such case to enter into nos 30-35 by such means and to pass along its passages corridors and stairway and through its entrance doorway to the public street”. By the interpretation provisions included in the licence this consent was expressed to include their respective successors in title. At some time later and prior to April 1987, the opening in the wall was blocked up on the no. 22 St. James’ Square side (this now being a doorway between what was offices on the side of no. 23 St. James’ Square and a residential leasehold flat on the side of 22 St James’ Square).
The defendant (the owner of the flat) refused to open up the blocked doorway on the basis that the 1969 ‘deed’ did not create any rights capable in law of binding her. The claimants appealed the first instance decision in her favour, but their appeal was dismissed. It was held that although since 1925 it is not necessary to use the word ‘grant’ to create and easement, the very use of the words ‘grant licence’ is not one that could have been used by, “a conveyancer of any experience as the means of creating an easement”. It was found that the lower court was correct in its conclusion that, “although the indications were far from clear as to what the parties intended, one has to take this as being a professionally drawn deed in which the draftsman has deliberately chosen to use the word “licence” and not the ordinary words associated with the grant of an easement”.
As a result the ‘deed’ in question created only a personal licence not capable of binding successors in title, notwithstanding the inclusion of wording stating that the licence bound successors in title.
It therefore follows that rights granted for escape must be enshrined by way of an easement, and not granted by a licence if the intention is for that escape to benefit and burden successors in title. A licence will still be appropriate where the intention is to create a personal agreement and rights limited in time or ownership.