Easement — Vehicular access — Way of necessity — Transferor failing to grant right of way in favour of land transferred — Subsequent transfer purporting to grant right of way over land transferred — Whether implied way of necessity — Claim allowed
The claimants owned a dwellinghouse and land known as Forge Meadow and the defendants, their neighbours, owned a property known as the Old Forge. In April 1988, L, the predecessor in title to the land on which both properties stood, had transferred Old Forge, Old Forge Yard and the surrounding land to himself and his wife as part of a redevelopment project. However, L had failed to reserve rights of way in favour of the Forge Meadow land, of which he remained the sole owner, over the land transferred.
In 1989, the Forge Meadow land was transferred to M, who planned to use it to construct a dwellinghouse. The transfer purported to grant certain rights over Old Forge Yard including vehicular and non-vehicular access for all purposes in connection with the land transferred. The Land Registry failed to notice that L had no power to make the purported grant of rights over Old Forge Yard and it subsequently registered those rights on the title. Following the construction of a house had been built, the claimants purchased Forge Meadow from M and the first defendant purchased Old Forge from L and his wife. The rights purportedly granted by the M transfer did not appear on the registered title to Old Forge.
The only route by which vehicular or pedestrian access could be obtained from the road to Forge Meadow was through Old Forge Yard. The defendants’ formal position was that no vehicular right of way existed over any part of Old Forge Yard. The claimants applied for declaratory and injunctive relief on the basis that the effect of the 1988 transfer was to create an implied way of necessity over Old Forge Yard.
Held: The claim was allowed.
The 1988 transfer created, by implied reservation, a vehicular right of way over Old Forge Yard in favour of Forge Meadow for the purposes of constructing, and thereafter using, a dwellinghouse thereon.
Where, following a transfer, access to the property retained was only available either over the property granted or by destruction of a physical barrier, the continued existence of which was obviously contemplated by the parties, it was consistent with the doctrine of necessity to say that a way over the property granted was impliedly reserved as a matter of necessity.
A way of necessity might be implied for purposes contemplated at the date of the grant but not yet implemented. The foundation of the right rested upon an implication as to the intention of the parties to be gathered from all the circumstances: Serff v Acton Local Board (1886) LR 31 Ch D 679 and Nickerson v Barraclough [1981] Ch 426 considered.
The question whether a particular way was necessary was a question of fact to be determined by the consideration of all the surrounding circumstances. Where it was so obvious, from the nature of the particular house and the circumstances surrounding the grant that a vehicular way was necessary, it was open to the court to conclude that the house would not be useable, in the ordinary sense of the word, without it.
Jeffrey Littman (instructed by Charles Blacklock & Co, of Monmouth) appeared for the claimants; John Sharples (instructed by Darwin Gray, of Cardiff) appeared for the defendants.
Eileen O’Grady, barrister
