Most easements are acquired by express reservation or grant. However, it is possible to acquire an equitable easement through the operation of the doctrine of proprietary estoppel.
Hoyl Group Ltd v Cromer Town Council [2015] EWCA Civ 782 concerned a claim to a right of way through a garden and into a flat in the basement of a building in Cromer. The council used the ground floor of the building for its own purposes, and let the upper floors as offices. One of its tenants entered into a 99-year lease of the basement with the intention of converting it into accommodation for visiting directors.
At the date of the grant of the lease, the only access to the basement was internal. The council wanted this closed, but there was a potential form of access via the car park and a separate fire escape, which led into the garden. The company’s architects produced plans showing a new means of access via the car park, but the company decided on a cheaper alternative. The new layout relied on access through the garden, with a fire exit into the car park.
The council‘s representatives indicated that the new arrangements were likely to be acceptable and, because the council did not want the internal access to be used for longer than was necessary, urged the company to complete the work as soon as possible. Following completion of the work, the company directors continued to use the internal access, and made occasional use of the garden, without objection from the council.
Things changed when the company relocated to new offices and found a buyer for the flat, who was unwilling to proceed unless the means of access was assured. The company tried unsuccessfully to secure a formal right of way through the garden, before issuing proceedings for a declaration confirming that it had acquired an easement by virtue of the doctrine of proprietary estoppel. The council argued that the company had acted at its own risk when it carried out the work without securing an agreement as to future access, and suggested that the loss should lie where it fell.
The Court of Appeal upheld the company’s claim. The company had believed that it had, or would have, a right of way through the garden and had been encouraged in that belief by the way in which the council had behaved. The council knew that the new layout depended on the use of the garden access. The project had gone forward on that basis and the council had granted a licence for alterations that was consistent only with there being a right of way through the garden.
The company would not have altered the layout of the flat if it had not believed that it would be entitled to use the garden and it would be unconscionable if the council were to refuse to recognise its right to do so now. The configuration of the flat would be highly inconvenient without the garden access. It would leave the tenant with use of a fire escape in a small bedroom and would inflict significant financial losses in terms of the value of the property and/or the cost of remedial works to revise the entranceway and layout.
Allyson Colby is a property law consultant
