Paul Edwards looks at two recent cases where, for very different reasons, the beneficiaries of rights of way failed to stop a perceived interference with their rights.

Registration of informal rights: Protect it or lose it.

This was the message in the Court of Appeal decision of Chaudhary v Yavuz1 , which highlighted the need for owners of informal rights created after 2003 to protect them through registration at the Land Registry, or else risk losing them on a sale of the relevant property.

The case concerned two neighbouring properties – numbers 35 and 37. The properties each comprised business premises on the ground floor with a residential flat above and were separated by an alleyway belonging to number 35. In the alleyway was a metal staircase, which was used to access the flats in each of the properties. At the time the staircase was constructed, all dealings between the owners of the properties were informal and not recorded in writing. When the owner of number 37 heard of his neighbour’s intention to sell number 35, he instructed solicitors to draft a formal deed of easement, which was left with the owner of number 35 but never signed. On the facts, therefore, the owner of number 37 had an informal easement (known as an equitable easement) over the alleyway and staircase to access his flat when number 35 was sold.

The sale of number 35 completed in late 2006. The new owner removed the staircase, leaving the flat in number 37 without any means of access whatsoever. The owner of number 37 brought an action for injunctive relief and damages.

Since the introduction of the Land Registration Act 2002, an equitable easement is not a right that will automatically bind new owners of a property registered at the Land Registry. However, the rights of persons in actual occupation will bind new owners. The owner of number 37 argued that the equitable easement did bind the new owner of number 35 as it was tantamount to occupation of the staircase. The Court rejected this argument on the basis that mere use of the alleyway and staircase by way of passing and re-passing between the street and the flat in number 37 was not sufficient to constitute actual occupation.

The Court also considered the terms of the sale contract of number 35, which provided that the buyer took the property subject to any encumbrances discoverable on an inspection of the property. Although the property included the staircase, the Court held that as the contract was between the buyer and seller of number 35, it could not impose an obligation on the buyer enforceable by a third party, such as the owner of number 37.

As a result of the Court’s findings, the right of way was not binding on the new owner of number 35. The benefit of the easement was lost and the owner of number 37 had no remedy against the removal of the staircase. The owner of number 37 could and should have registered a notice at the Land Registry against the title to number 35. The fact that the staircase was obvious on an inspection of the property and known to the buyer of number 35 was irrelevant. This could be considered a harsh example of the courts’ desire for certainty in this area of law. The Court of Appeal reasoned that although there may be exceptional situations in which it might be unconscionable for a purchaser to take free of unregistered rights that it knew about, this was not one of those situations. The owner of 37 could easily have protected his rights by registration and, therefore, it was not unconscionable for the owner of number 35 to rely upon the failure to do so.

No wiggle room for widening rights of way?

The case of Oliver v Symons2 serves as a useful reminder of the need to ensure that specifically granted rights of way are sufficient for all intended purposes. The case concerned farm land accessed via an access way over which the following rights had been granted:

“To pass and repass, with or without motor vehicles and agricultural machinery or on foot only (as appropriate) over and along the accessway over the property shown coloured yellow on the said plan.”

Relations between the owner of the access way and the beneficiary of the right of way soured. The owner of the access way constructed various gateposts along it which did not reduce the width of the access way but nevertheless had the effect of limiting the types of vehicles that could use it, particularly larger farm machinery.

The beneficiary of the right of way sought to argue that the right should not be construed as limited to the access way itself. Rather, it should include some “swing space” on either side to allow tolerance for wide loads, and “verge space” to allow vehicles to veer onto the grass verge on either side of the track when, for example, manoeuvring round a bend whilst pulling a trailer.

The Court of Appeal did not find either argument particularly convincing and rejected the claim.

In deciding whether the right of way was to be interpreted to include this extra space the Court was mindful of the fact that this would result in a corridor of space beyond each side of the access way upon which the owner could not build. This would leave landowners with uncertainty in deciding how wide this space should be. Similarly, the Court did not agree with the argument that the right of way was designed to allow agricultural machinery to pass over it and should, therefore, allow such machinery of any width to use the accessway. This would have the effect of unilaterally varying the right of way depending on the farm machinery owned by the beneficiaries from time to time.

The Court did, however, leave open the possibility of construing a right of way by looking at the purpose for which it was granted even if this resulted in extending the right of way beyond its physical dimensions. For this there would need to be evidence that the width of the right of way, as defined in the relevant deed, was not sufficient to achieve the objective that the parties had intended. The Court did not consider that this was the case here as a number of the beneficiary’s agricultural vehicles could use the accessway.

The beneficiary of the right of way argued that it had always been used in a way that extended beyond the width of the access way, suggesting that even upon grant of the right, the access way was not wide enough properly to facilitate the beneficiary’s business. The message from the Court, however, was that the parties should ensure the adequacy of rights of way when entering into documents and be mindful of future plans for the business that may result in the right of way becoming inadequate. The right of way in this case had only been granted in 1999. Had the parties contemplated the possibility of larger farm vehicles coming into use, the issue could have been avoided altogether.