It is notoriously difficult to show that an easement has come to an end. But what is the position if the title to a property appears to be burdened by an easement that cannot be exercised owing to a change in the layout of the land?
Shortland v Hill [2017] EW Misc 14 (CC) concerned land that was affected by a “right of way at all times and for all purposes with or without vehicles over and along that part of the property hereby transferred shown hatched green on the said plan for the sole purpose of access to the garage forming part of the retained property”. Had the right of way been lost when the garage was demolished and grassed over?
The owners of the servient land claimed that the easement had been lost because the right had been reserved solely for the benefit of the garage. And, if this were wrong, they pointed to a covenant in the transfer that required them to concrete a sufficiently wide area of the yard to enable vehicles to obtain access to the garage and tried to persuade the court that this governed the interpretation of the easement. Therefore, so their argument went, the right of way must be restricted to such part of the yard as was necessary to enable the owners of the dominant land to obtain access to the garage by the straightest route possible.
The county court judge accepted that there can be cases in which, as a matter of construction of the grant or reservation, easements are limited. But the factual matrix in this case was clear. The transferor had carried on business as an antique dealer and had advertised his premises and workshop for sale separately. The workshop had sold first and he had reserved as many rights as possible over the land that went with it in order to facilitate the continued use of the shop premises – even though this had reduced the price paid for the workshop. It was clear, therefore, that the easement had been reserved to benefit the retained land as a whole, as opposed to being simply for the benefit of the garage. Consequently, the easement had survived the demolition of the garage – and had not been suspended or abandoned.
Furthermore, the transferor had reserved a right of way at all times, for all purposes, with or without vehicles, over every part of the yard. The right was not purely vehicular. It was designed to facilitate pedestrian access too – and such access can be over surfaces that are impassable to vehicles.
The reservation and the covenant were separate provisions that were independent of each other. The transferor had bargained for the most ample space possible in which to exercise his right of way, and there was no reason to restrict the easement in the manner that the owners of the servient land were seeking to do. Therefore, the owners of the dominant land were entitled to obtain access to their property over the yard on foot as well as by vehicle and the right of way was not confined to the straightest possible line.
Allyson Colby is a property law consultant
