The case of Pezaro -v- Bourne [2019] EWHC 1964 (Ch) is an interesting case for those of us who spend a lot of our time arguing, advising and litigating over easements. 

The case concerns three properties: 147, 149 and 151 New Street, Andover, Hampshire. Mr and Mrs Pezaro owned 149 and 151 New Street. Mr and Mrs Bourne were the current owners of 147. Number 147 had the right of way over a track to a cemetery that passed through 149 and 151.

The history

Mr and Mrs Pezaro had bought 149 and 151 in 2001 and 2004 respectively. They were aware that 147 had a right of way. At this time, Mr Ayres owned 147. After the sale-off of part of the rear gardens, the burden of the right of way was removed from the title of 149, but remained entered on the charges register of the title to number 151. Importantly, the benefit was registered on the registered title of number 147.

Mr and Mrs Pezaro then moved to New Zealand and rented their houses out. Their plan was to redevelop the properties. At the end of 2009, Mrs Pezaro telephoned Mr Ayres from New Zealand to ask if he would object to Mr and Mrs Pezaro applying for planning permission to build a further house on the plot. Mrs Pezaro gave evidence to say that in that conversation no mention was made of the right of way, which she says was consistent with her belief that the right of way had effectively fallen away in accordance with previous oral agreements made with Mr Ayres.

Mrs Pezaro also gave evidence that at the beginning of 2010 she telephoned Mr Ayres again and explained to him that the right of way still existed on the title of 147 and that it still had the benefit of the right of way. She asked if he would agree to its removal if she and Mr Pezaro paid his legal costs. She said that Mr Ayres had expressed surprise that the right of way still existed and that he thought it had been removed some years earlier and that he stated that he had no issue with its removal. Crucially, however, Mr and Mrs Pezaro took no steps to have the right of way removed from the registered titles. 

Mr and Mrs Pezaro obtained planning permission in 2011 and Mrs Pezaro contacted Mr Ayres again with a view to having the right of way removed. However, very much to her surprise, she found out that Mr Ayres had sold 147 in August 2010 to a property developer, Mr Bradshaw. Therefore, Mrs Pezaro contacted Mr Bradshaw, but he explained to her that he had then sold the land on to Mr and Mrs Bourne in May 2011. Mrs Pezaro then contacted Mr and Mrs Bourne in order to try to agree to have the right of way removed, but Mr and Mrs Bourne were not prepared to do so, and that is how the matter ended up in court. 

The litigation

Mr and Mrs Pezaro’s case relied on the doctrine of proprietary estoppel. Put briefly, proprietary estoppel is based upon a representation by words or conduct which amounts to a statement about the future enforcement of legal rights. There has to be a representation, reliance on the representation, and detriment flowing from the reliance. 

The complicating factor in this case, of course, was that the representation had been made by Mr Ayres and not by the current registered proprietors, Mr and Mrs Bourne. Mr and Mrs Bourne relied on their registered title. If Mr and Mrs Pezaro were entitled to rely on proprietary estoppel, would that be binding on Mr and Mrs Bourne, as purchasers of the land in good faith for valuable consideration? 

This is where the Land Registration Act 2002 came into play. Under section 116 of the 2002 Act, equity by estoppel (i.e. a proprietary estoppel):

‘has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority)’.

So, what did ‘the rules about the effect of dispositions on priority’ have to say? 

Section 29(2) of the 2002 Act deals with the effect of dispositions on priority. It provides that the priority of an interest is protected where it had been registered or where it fell within interests which override registration, such as an interest belonging to a person in actual occupation. The key issue here of course is that the agreement between Mr and Mrs Pezaro and Mr Ayres was not on the title. Nor were they in actual possession of the right of way

It followed that the claim to have the right of way removed on the grounds of proprietary estoppel failed. Mr and Mrs Bourne were entitled to rely on the register as establishing their priority in terms of the registration of the right of way.

In retrospect, by waiting until after they obtained planning permission to take steps to have it removed from the titles, Mr and Mrs Pezaro had exposed themselves to the risk that the then registered proprietors may not be prepared to do so. Accordingly, the right of way will remain on the titles unless and until any agreement is reached for it to be removed and no doubt for an appropriate consideration.  

The key message to be taken from this decision is the driving force of the policy behind the 2002 Act. Purchasers for value should be entitled to rely on the registered title. Whilst proprietary estoppel, trusts and other equities all still play a part in unravelling disputes relating to registered land, one must always remember the key thrust of the legislation, which is to respect the registered title, particularly in relation to purchasers for value who rely on the register. 

Adverse possession

Finally, a very quick mention in relation to a recent authority, in relation to adverse possession, which has not been widely reported.

Thorpe -v- Frank [2019] EWCA Civ 150 is a Court of Appeal decision arising out of a decision of the Upper Tribunal on adverse possession. The case involved semi-detached bungalows at 8 and 9 Harcourt Close, Bishopthorpe, York. In or around 1986, the owner of number 8 had paved an area of land, which was within the registered title of their neighbour at number 9. The land had not been enclosed or secured, but it was paved along with their own land, to give the appearance of it being within the curtilage of number 8.

The Court of Appeal noted that there was no legal authority where paving alone had been found to amount to adverse possession. What constitutes a sufficient degree of exclusive physical possession or control has to depend on the nature of the land and the manner in which the land was commonly used or enjoyed. In the case of open land, where it is generally impossible to secure every part of the boundary, lack of a boundary feature securing this may not be so much of an issue.

It was held that the mere paving of the land was indeed an act of sufficient degree of exclusive possession or control as to amount to ‘possession’ for the purposes of adverse possession. It was undisputed that the adverse possessor had an intention to possess the land. They had incorporated it into their own property by paving and made it appear to be within the curtilage of number 8. The court found that there could hardly be a clearer act of possession. Accordingly, the owner of number 8 had been in possession of the disputed land and was entitled to adverse possession of it.