Category Archives: Rights of Way

Lapsed Land Registry application saddles land with right of way

Where someone buys real estate they only have an equitable interest in it until it is registered in their name at the Land Registry. Registration perfects their legal ownership. Until that registration the seller is deemed to hold the land on trust for the buyer.

In the High Court case of Baker & Anor v Craggs [2016] two areas of land were being sold by the two joint owners. The second area sold should have had a right of way over the yard of the first area sold but the Sellers omitted to reserve it.

However the Sellers’ failure to reserve that right of way did not prevent them selling the second area with that “right of way”.

Normally transferring the first area without reserving that right of way would have disabled the Sellers from granting it to the Second Buyers. However fate intervened.

The “grant” of the right might still be valid if the Sellers were still the “legal owners” of the yard at the time the Second Buyers bought the second area with the “right of way”.

The Second Buyers faced four hurdles:

1. Were the Sellers still legal owners of the yard notwithstanding that they had already “sold” it to the First Buyer? The court said yes because there had been a major delay getting the first sale registered at the Land Registry due to a problem with the transfer plan. It had been overtaken in the registration stakes by the second sale. Pending registration the Sellers had owned the legal estate in the yard on trust for the First Buyer.

2. Did the First Buyer still have priority over the Second Buyers because of his Land Registry search and application? Answer: no because the priority conferred by them had lapsed when the First Buyer’s original Land Registry application was cancelled due to delays dealing with the plan problem.

3. Was the priority of the First Buyer’s interest nonetheless protected by the fact that he had been in “actual occupation” of the yard since his purchase? Answer: Yes it had been pretty obvious to the Second Buyers. The First Buyer had been doing some building work.

4. Was 3 above fatal to the Second Buyers’ right of way or could the Second Buyers show that the First Buyer’s interest in the yard was “overreached” by the Second Buyers’ purchase of the second area and that right of way so as to be nevertheless postponed to them? The court said: yes. Pending the First Buyer getting registered the Sellers held the yard on trust for the First Buyer but the Sellers nonetheless had all the sale powers of an absolute owner and the First Buyer’s interest in the yard would be overreached so as to be subordinated to the Second Buyers’ purchase and right of way provided (as occurred here) all the sale proceeds of the second area were paid to both the Sellers who still held the yard as trustees for the First Buyer pending resolution of the plan problem and the registration of the First Buyer’s ownership of the yard.

This use of the doctrine of overreaching seems very harsh on the First Buyer as he had no entitlement to any of the sale proceeds of the second area. The Sellers granting a burdensome right of way through the yard to the Second Buyers seems rather inconsistent with the concept of the Sellers holding the yard on trust for the First Buyer.

The very technical concept of overreaching appears to have come to the court’s aid to avoid the Second Buyers from being landlocked.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Previous diversity of occupation not essential to rights claimed

The case below has had much interest in the national press as the Claimant Mr Wood MBE was a well known soldier who had spent well over £3m on a new equestrian centre which relied heavily on a claimed “right of way” across a neighbour’s. The neighbour said the horses affected his game bird breeding.

In the Court of Appeal case of Wood & Anor v Waddington [2015] the Claimants, Mr and Mrs Wood, said that they had rights of way over land owned by the Defendant, Mr Waddington.

The Woods’ and Mr Waddington’s property had been owned by a Mr Crooks prior to 1998.

Mr and Mrs Wood said:

1. that the rights claimed were expressly granted to their predecessors in title, Mr and Mrs Sharman by clause 12.3.3 of the transfer from Mr Crooks to Mr and Mrs Sharman. This said

“… the Property is sold subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property…”.

Corresponding rights had been reserved out of the transfer to Mr Waddington by clause 12.5.3 of that transfer.

However at first instance the High Court had concluded that for the general words in those clauses, a right of way was not a liberty, privilege or advantage “of a continuous nature“. It gave those words their established conveyancing meaning not intending to deal with rights of way at all but instead things like pipes wires and drains.

2. Mr and Mrs Wood said the rights claimed were advantages enjoyed with the land transferred by Mr Crooks to the Sharmans, their predecessors in title, and became easements under section 62 of the Law of Property Act 1925.

The Claimants said that the rights which they claimed were, prior to the transfer to Mr and Mrs Sharman, “enjoyed with” the land so transferred under section 62.

However at first instance the High Court said section 62’s use of the word “with” suggested that before the conveyance, there must have been a relationship between the land to be conveyed and the land to be retained so that it could properly be said that the relevant advantage had been enjoyed with the land to be conveyed.

The leading case Long v Gowlett [1923] had said that there must be some diversity of ownership or occupation of the two parcels of land sufficient to attribute the acts relied on “not to mere occupying ownership, but instead to some advantage or privilege (however far short of a legal right) attaching to the owner or occupier of Whiteacre as such and de facto exercised over Blackacre.”

However the Court of Appeal said that:

1. there is no absolute bar to section 62 operating where land has been in common ownership and occupation. Diversity of occupation assist us to differentiate between cases where a landowner is just using their land as they wish, and cases where a use is in the nature of an easement or quasi¬easement enjoyed for the benefit of a particular part of the land. However, diversity of occupation is not essential and section 62 may be effective to transfer easements where the enjoyment of the rights claimed was continuous and apparent when the parcel of land was sold off.

2. The word “continuous” had become “all but superfluous” when the words “continuous and apparent” were juxtaposed with claims under the rule in Wheeldon v Burrows [1879] and under section 62.

Additionally under section 62 there was no requirement to show that the easement claimed was necessary for the reasonable enjoyment of the land (as is required under Wheeldon v Burrows).

What mattered was the extent to which there were visible signs of a track or road, and in this case there were adequate signs on the ground that the claimed routes had been continuous and apparent.

Section 62 only applies if the rights claimed are enjoyed with the land. So they must have been used for a reasonable period before the parcel of land was sold off.

The Court of Appeal then considered when, and how often, the tracks were used and said that the tracks being used approximately once per month met the requirements of section 62.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Right to have and keep gates shut could bind successors

In the Court of Appeal case of Bradley & Anor v Heslin & Anor [2014] what was claimed was a right to maintain gates across the entrance to a joint drive, and a right to open and close those gates at all times and for all purposes connected with the enjoyment of one of the properties, No. 40 Freshfield Road Formby, Merseyside.

The claimant and respondent’s respective predecessors were Mr Thompson and Mr Ewing. Mr Thompson had done work on Mr Ewing’s land including designing and erecting gate pillars and gates, building boundary walls to the driveway, laying out and edging the driveway, planting the hedge and tarmacing the end of the driveway.

The work undertaken considerably exceeded maintenance of the shared portion of the driveway.

There was now a neighbour dispute between their successors as to Mr Thompson’s successors’ rights to close the gates.

Also it was extremely unlikely that Mr Thompson would have done that work on Mr Ewing’s land without any discussion with Mr Ewing, or that Mr Ewing would just stand by and permit it to happen.

Mr Bradley had confirmed orally that Mr Thompson had told him that he had tacitly agreed with Mr Ewing to build the gateposts but there was no direct evidence of any express formal agreement or of any specific terms.

However it could only be inferred that the building of the northern and southern pillars flanking the driveway and the installation of working gates and the other work must have been done with the express agreement of Mr Ewing and that both Mr Thompson and Mr Ewing benefited from the arrangement.

It was evident that the gates had not been not erected with the intention that they be purely ornamental and would never be shut. Mr Thompson had an aggressive dog. One purpose of the gates was to prevent it going onto the road.

It could be inferred that the gates were regularly closed for that reason.

However it could not be inferred that the default position was that the gates were always shut as the dog would probably have been chained or kept in the house as well.

When shut, the gates must have interfered somewhat with Mr Ewing’s freedom to go to and fro.

However there being no evidence of disagreement supported the view that that hindrance was consensual and reasonable.

Doubtless Mr Thompson had constructed the northern gate pillar at his own expense, to his design in his chosen location, and hung from it gates which he operated according to his need. Altogether they contributed to a coherent and unified frontage design which made the entire frontage appear to be part of Mr Thompson’s property.

Mr Thompson had gone far beyond just discharging an obligation to share the cost of maintaining a jointly used driveway. His work and contributions had given Mr Ewing extensive and enduring benefits – even if the agreement had been “tacit”.

Thereafter Mr Thompson acted as an owner of the northern pillar and gates would be expected to act and Mr Ewing did not act as such owner.

Mr Thompson had done so because he reasonably understood that he would be entitled to do so.

That such was the understanding of Mr Thompson must have been known to Mr Ewing who must have intended Mr Thompson to be so entitled in return for all the work that Mr Thompson did at his own expense on property that belonged to Mr Ewing.

If in 1979 Mr Ewing had demolished the northern pillar or painted it pink that would not have been regarded as conscionable. Equity would have estopped Mr Ewing from exercising such rights as registered proprietor of the ground on which Mr Thompson had built the pillar.

If such an estoppel originally governed the relationship between Mr Ewing and Mr Thompson then it continued to bind their successors.

Mr Thompson’s successors could assert rights to ownership of the northern pillar as (assumed) registered proprietors of it. The frontage appeared a unified whole and to be the frontage to No.40. The owners of No.40 were in actual occupation of the pillar so their equitable rights to it were protected as an old overriding interest under the Land Registration Act 1925.

Accordingly, the northern pillar belongs to the Bradleys as owners of No. 40.

As to the ownership of the gates that hung between the pillars, they belonged to the owners of No.40 as well. Mr Thompson had paid for them: and they hung between pillars which belonged to him and had since devolved to his successors as owners of No.40.

When (if ever) may the gates be closed?

It was not intended that the gates should be purely ornamental. Whilst there was no direct evidence of such agreement, the fact that they were used as soon as they were erected evidenced a “tacit” agreement between Mr Ewing and Mr Thompson that the gates were to be functional.

The owner of the property that had the right of way had gated the way and thereby interfered with the landowner’s rights.

If the gates were closed whenever those owners wanted to pass through them, then they would be seriously inconvenienced, as would their predecessors in title have been.

So for the Bradleys to close the gates over the driveway would be a trespass over the Heslins’ land, unless they had a right to do so: which right would be in the nature of an easement. The right to hang and close a gate could be a right capable of being an easement and could be acquired by grant or prescription or as here result from a proprietary estoppel. It was simply the right to occupy airspace by hanging a gate over the land forming a driveway which was quite capable of being an easement that made life better for the property that benefited from it.

It was compatible with being an easement as it did not amount to a claim to the whole beneficial use of the driveway, nor did it render the Heslins’ ownership of the driveway illusory.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Initial toleration of fence placement did not abandon right of way

The courts do not lightly accept that rights have been abandoned through mere disuse. There has to be pretty unequivocal evidence that they have been intentionally and permanently abandoned by the owner and any tenants of the land benefitting from them.

In the Court of Appeal case of Higson & Anor v Guenault & Anor [2014] the appellants, owned a house and garden at Lancaster (“the Higsons’ property”).

The respondents were representative members of the Bowerham Lawn Tennis Club (“the Club”). The Club was accessed by a narrow track which ran alongside the Higsons’ property (“the lane”).

The case centred on a larch lap fence mounted on concrete posts which the Higsons erected in 2004, (“the 2004 fence”).

In 2006, the Club wanted to recover the tennis courts. When the Club contracted to have the courts resurfaced, the drivers of the independent contractor lorries were unable to get down the lane to offload the material.

The issue was whether the Club had a right of way up to the hedge on the south side of the lane or whether the right of way was only up to the 2004 fence.

The court concluded that, as at 1997, the physical extent of the right of way which the Club enjoyed was up to the hedge on the south side of the lane.

The appellants claimed that the physical extent of the right of way might have been reduced by virtue of the 2004 fence. The court did not accept that argument. The mere fact that the owner of land benefitting from a right of way does not use the full extent of his right of way over the land burdened by the right of way all the time does not mean that the right of way is abandoned or modified.

It must be proved that the person having the right intends to abandon it. There was no evidence of that.

So in a victory for the Club, the court concluded that the Club’s right of way over the lane on the south side was, and remained, right up to the hedge, and up to the line of the former hedge where it had been cut down, e.g. to provide access points to the Higsons’ property.

This blog has been posted as a matter of general interest. It does not remove the need to get bespoke legal advice in individual cases.