When it is not good to talk

Insights - 17/09/2019

Cathryn Pernstich, a Senior Associate Solicitor in our Commercial Property Team, looks at rights of ways over adjoining land.

A right of way over another piece of land, a right to lay a pipe under your neighbour’s drive, a right to park in a designated space – all quite usual day to day occurrences in the property world.

Often, however, seemingly innocuous, they can cause real issues in agreeing the exact form of the right, its extent and its location.  For example:

  • A right of way on foot only? Or with vehicles as well?  What sort of vehicles?
  • Should the pipe go around the edge of the land? Or should it go through the middle?
  • How many cars can you park? Where is the parking space?  Should the user contribute to its upkeep?  If so in what amount?

Once the ins and outs of the extent of the right are agreed what should then happen?  In an ideal world, the creation of that right should be formally documented and noted on the titles to the parcels of land it effects.  Sometimes they are not formally documented but used anyway.  Their continuous use can also (if the correct conditions are met) mean that the right attaches to the parcels of land and is binding on subsequent owners.

Sometimes the right that has been granted needs to be terminated or naturally comes to an end – both parcels of land are owned by the same person or the right is just not needed anymore.  In the same way that creating a new right should be formally documented, the ending of that right should also be formally documented.  Not doing that can put a block on how a property might be used.

The case of Pezero and another v A Bourne and another [2019] EWCH 1964 (CH) is a good example of this.

At one point in time P owned two adjoining properties (properties 1 and 2).  Both properties 1 and 2 were subject to a right of way in favour of property 3.  The right of way that property 3 enjoyed ran along the back of the properties 1 and 2 down the side of property 2.  The right of way was noted on the titles to each of properties 1, 2 and 3.  When P had originally bought properties 1 and 2, property 3 (owned by A) had never used the right of way.  The right of way had in fact been blocked by a fence.  P then went on to buy part of A’s back garden (part of property 3) so he could build on it.  This meant the right of way could not be exercised.

At the time of P’s purchase of part of property 3, P agreed verbally with A that the right of way would fall away.  P did nothing to document the extinguishment of the right at the Land Registry.   A sold the rest of property 3 to B.  B claimed use of the right of way over property 1 and 2.  P claimed B could not have the benefit of the right as P and A had agreed it had gone.

The Court decided B still had the benefit of the right of way over properties 1 and 2.  The initial agreement was not sufficient to make removal of the right binding on future owners.  The removal of the right should have been documented and lodged at the Land Registry to remove the existence of the right.

The case is a prime example of making sure things are dealt with in the correct manner.  It shows how a conversation can have a far-reaching effect and can potentially scupper the future use of a parcel of land.  This applies to creating a right as much as ending git.

If you are in the position where you need to grant or take rights over another’s land or you want to end those that exist, then do be mindful of the need to formally document any intentions.

If you have any questions or would like to discuss any of the issues raised in this blog, please feel free to contact Cathryn Pernstich a Senior Associate solicitor within our Commercial Property team.  Cathryn is contactable by telephone on 01737 854521 or by email on [email protected]

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.