The recent case of Donovan and Rana (2014) illustrates the problems that can arise when necessary easements are omitted from the transfer of a property.

Mrs Donovan sold part of her garden with the benefit of outline planning permission for a single dwellinghouse. The Transfer of the plot granted a vehicular and pedestrian right of way over part of Mrs Donovan’s garden (the ‘retained land’) ‘for all purposes connected with the use and enjoyment of the property but not for any other purpose’. The Transfer stated that any rights of way or access for the benefit of the plot that were not expressly referred to in the sale documentation would not be deemed to be ‘expressly implied granted or reserved’. The Transfer also obliged the owners to develop the dwellinghouse ‘to the satisfaction of the Local Authority’.

The owners of the plot proceeded to develop the dwellinghouse and connect it to the services in the public highway through the retained land. Mrs Donovan initially sought an injunction to stop the works, claiming that the owners were trespassing on her land, but later amended this to a claim for damages.

Mrs Donovan’s claim was dismissed by the County Court which held that it was the common intention of the parties that a modern dwellinghouse would be built on the plot which complied with ‘all local authority requirements’ . The Judge inferred that the intention ‘was that the building plot should have connections to the utilities so there was an implication of a right to connect’ to the services through the retained land and that as there was a common intention to install services the rights granted in the transfer could be used for this purpose. This decision was upheld by the Court of Appeal.

Whilst this case was determined on a number of specific factors, it illustrates the importance of ensuring that all necessary rights and easements are granted in a transfer, particularly in relation to the development of a property, and the time and costs that can be involved when these are omitted.