In Dickinson v Casillas [2017] EWCA Civ 1254; [2017] PLSCS 166 the parties had been at loggerheads for more than a decade. The flank wall of one of the properties, number 96, had been built along the boundary line with number 98 – and, because the gas and electricity meters for number 96 were set into that wall, they could only be read from the driveway that served number 98. However, the owners of number 98 refused to allow their neighbours to read the meters, going so far as to install a locked gate at the entrance to their driveway, topped with spikes. They also refused to allow the owners of number 96 to inspect the wall to see if any repairs were needed, or to attach gutters to their new porch, claiming that the guttering would intrude into the airspace of number 98.
The properties had been transferred subject to and with the benefit of cross rights enabling the parties “to enter with workmen tools and materials …. for …. maintenance repair and decoration”. But the transfers did not state that the parties were entitled to inspect to see whether any such work was required. However, the Court of Appeal noted that the Oxford Dictionary defines the word “maintain” as to “keep (a building, machine or road) in good condition by checking or repairing it regularly” – and to interpret the transfer in any other way would be absurd. A right to inspect was a necessary precursor to the rights that had been granted and was implicit in the transfer.
The court accepted that maintenance, repair and decoration of a house did not obviously include reading its meters. But the meters had been installed on the other side of the boundary wall and Moncrieff v Jamieson [2007] UKHL 42 was authority for the proposition that “the law will imply a term into a contract, where, in the light of the terms of the contract and the facts known to the parties at the time of the contract, such a term would have been regarded as reasonably necessary or obvious to the parties”. It could not have been intended that the owners of number 96 would be unable to read their meters. Therefore, a right of access to read the meters must be implied.
The transfers of the properties also included cross rights enabling the owners of the properties to “erect and maintain …. eaves gutters and downspouts on buildings for the time being erected on the property transferred so that the same overhang and discharge surface water onto adjoining land”. The owners of number 98 had argued that these rights extended only to the buildings in the form that they were constructed, or were being constructed, at the date of the transfers, but the court disagreed. The phrase “for the time being” envisaged, and was intended to encompass, a changing state of affairs: Department for Environment, Food and Rural Affairs v Asda Stores Ltd [2003] UKHL 71. Consequently, the rights granted extended to the porch or other structures on the property of number 96, whenever built.
The court deplored the fact that, instead of finding a sensible solution to their problems, the owners of number 98 had taken a stand on what they considered to be their strict legal rights. They had been wrong, leaving them with a legal bill that was “extraordinarily high” – and, if newspaper reports are to be believed, could even result in the loss of their home.
Allyson Colby is a property law consultant
