Land – Easement – Right of way – Claimant wishing to build new house on parcel of land – Defendant neighbour arguing claimant had no right of way over its private road to enable house to be built – Whether claimant having right of way – Whether claimant bound by restrictive covenant – Whether covenant unenforceable for want of registration – Claim allowed in part
The claimant owned a property at 40 Fairmile Lane, Cobham, Surrey. The defendant owned the property next door. Fairmile Lane was the public highway to which the private road connected. The main drive of No 40 gave directly on to the public highway, so the side access into its garden from the private road was only needed for access to the back of No. 40. A house and detached garage were built on No 40 in 1972, in such a way that the back garden was accessed through a relatively narrow side archway. The private road was within the title to No 38, owned by the defendants. The claimant wished to build a new house on a rectangular parcel of land (the yellow land), which formed part of the registered title to No 40, with a frontage on to the private road. The defendants disputed that the claimant had a right of way which enabled a house to be built on it, and sold off, as a separate parcel with access from the private road. They further relied upon a restrictive covenant not to build on the land in clause 2(a) of a transfer in 1968 which, they said, prohibited him from building on it. The claimant relied on a right of way granted in a 1923 conveyance. The defendants’ case was that that right of way was extinguished by subsequent conveyances in 1950 and 1951, as a result of which the dominant tenement (the yellow land) ceased to benefit from, the right of way.
The claimant brought proceedings to establish his rights. The principal issues were: (i) whether the claimant had a right of way from the private road belonging to the defendants to the whole of his back garden or only to part of it excluding the part on which the claimant wanted to build a new house; (ii) whether the claimant was bound by the restrictive covenant not to build on the land in question; and (iii) whether the covenant was unenforceable for want of registration.
Held: The claim was allowed in part.
(1) (1) The right of way granted by the 1923 conveyance had been extinguished by operation of law by the 1950 conveyance, if necessary in conjunction with the 1951 conveyance, which made it clear that the parties contemplated that the right of way granted by the 1923 conveyance should no longer be available to the owner of the dominant land which had become physically separated and no longer could benefit from access from the private road. That was tantamount to a permanent abandonment of the right of way by the owner of the dominant land. That conclusion was covered by the existing law of abandonment, for the act of abandonment did not need to be lack of user. A permanent renunciation of the right of way could be inferred from the 1950 conveyance. It had always been open to bargain for a right of way, but that had not displaced the permanence of the renunciation: Beech v Kennerley [2012] EWCA Civ 158; [2012] PLSCS 35 considered.
(2) It was necessary imply an easement in the 1968 transfer to the effect that the “yellow land” enjoyed a full right of way to the private road, applying the usual principles of construction of contracts and deed. It could not have been in the contemplation of the parties to the 1968 transfer that the right of way was limited to the “transferred land”. The defendants’ submission, that sense could be made of it by allowing access to the “yellow land” as ancillary to access as part of No 40’s garden did not acknowledge sufficiently the very specific annexation of the burden of the obligation to pay for repair to the “yellow land”. The positive covenant in clause 2(b) to pay for the repair of the private road would not have been enforceable against successors in title to the burdened “yellow land” unless it was an adjunct to the enjoyment of a right of way: it would do violence to the language of the transfer if the right of way to the “land transferred” were conditional upon compliance with the obligation to pay for the repair. Further, it was not legitimate to read into any right of way to the “yellow land” the qualification suggested by defendants that the right of way could only be used so long as the “yellow land” was used as part of the garden since there was no covenant against the future sub-division of the plot. Instead, the covenant in clause 2(a) was inserted: Gore v Naheed and another [2017] EWCA Civ 369; [2017] PLSCS 111 applied; Das v Linden Mews Ltd [2002] 2 EGLR 76 considered.
(3) The restrictive covenant in clause 2(a) of the 1968 transfer was not binding on the claimant. The relevant entry to title plan to No 40 was not an entry within the meaning of sections 29 and 32 of the Land Registration Act 2002, so that the claimant was not bound by it. Rule 84(2) of the Land Registration Rules 2003 required the entry in question to identify the part of the title affected and the note to the entry, in seeking to fulfil that obligation, stated in terms that none of the land comprised in the title was affected by the covenant in clause 2(a). It followed that the entry, although entered on the register, had not been “an entry in the register in respect of the burden of an interest affecting a registered estate”, within the meaning of section 32(1) of the 2002 Act.
John Antell (instructed by Direct Access) appeared for the claimant; Adam Rosenthal (instructed by Sydney Mitchell LLP, of Birmingham) appeared for the defendants.
Eileen O’Grady, barrister
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