No legal impediment to development
Not so very long ago, the Court of Appeal decided that the separation of land that benefitted from a right of way into two parcels (leaving one of the parcels without any physical access to the roadway), accompanied by a positive covenant to erect and “forever after” maintain a fence obstructing access to the roadway, was insufficient to terminate a right of way: Annetts v Adeleye [2018] EWCA Civ 555; [2018] PLSCS 57, writes Allyson Colby.
The outcome in Roberts v Parker [2018] EWHC 1206 (Ch) was rather different. The court was asked to decide whether a right of way was still available to a plot of land that had been separated from the remainder of the dominant land by a sale of part, but had, at a later date, been reunited with part of the dominant land. The sale of the plot had left it without any physical access to the roadway and the conveyance that severed the plot included an agreement and declaration that the owner of the plot would not be entitled to use the right of way. But it was common ground that the agreement and declaration did not release or surrender the right of way because the owner of the roadway was not a party to the conveyance.
The court rejected the notion that the right of way had been extinguished because it ceased to accommodate the plot. The decisions in this case, and in Adeleye (although the point was not directly raised), suggest a reluctance to accept that physical separation of dominant land from servient land will, of itself, suffice to terminate an easement. It must also be clear that the easement will never be exercised again. But, in this case, the judge did accept that the agreement and declaration signified that the right of way to the plot was being permanently abandoned.
Not so very long ago, the Court of Appeal decided that the separation of land that benefitted from a right of way into two parcels (leaving one of the parcels without any physical access to the roadway), accompanied by a positive covenant to erect and “forever after” maintain a fence obstructing access to the roadway, was insufficient to terminate a right of way: Annetts v Adeleye [2018] EWCA Civ 555; [2018] PLSCS 57, writes Allyson Colby.
The outcome in Roberts v Parker [2018] EWHC 1206 (Ch) was rather different. The court was asked to decide whether a right of way was still available to a plot of land that had been separated from the remainder of the dominant land by a sale of part, but had, at a later date, been reunited with part of the dominant land. The sale of the plot had left it without any physical access to the roadway and the conveyance that severed the plot included an agreement and declaration that the owner of the plot would not be entitled to use the right of way. But it was common ground that the agreement and declaration did not release or surrender the right of way because the owner of the roadway was not a party to the conveyance.
The court rejected the notion that the right of way had been extinguished because it ceased to accommodate the plot. The decisions in this case, and in Adeleye (although the point was not directly raised), suggest a reluctance to accept that physical separation of dominant land from servient land will, of itself, suffice to terminate an easement. It must also be clear that the easement will never be exercised again. But, in this case, the judge did accept that the agreement and declaration signified that the right of way to the plot was being permanently abandoned.
However, the court also had to decide whether the reunion of the plot with the adjoining parcel brought with it the benefit of a newly granted right of way over the roadway. The owner of the plot had purchased the parcel together with the newly granted right, but it was not expressly granted for the benefit of the plot as well. And a grantee of a right of way to Point A is not entitled to use the right of way to get, via Point A, to Point B: Harris v Flower (1904) 74 LJ Ch 127. However, the buyer did covenant, as the owner of the plot, to contribute to the costs of maintaining the roadway. And, in the light of the very specific link between the covenant and the plot, the judge interpreted the right of way as being for the benefit of all the land in the ownership of the buyer. In other words, the plot, which was ripe for development, benefitted too.
This left one obstacle to development. The conveyance reuniting the plot with the adjoining parcel contained a restrictive covenant prohibiting the owner of the plot from building on it. But the entries in the charges register were contradictory. The register recorded the covenant not to build but stated, rather oddly, that “the land” subject to the covenant did “not affect the land in this title”. However, a previous entry in the charges register indicated that the land did fall within the title. The judge accepted that a prudent solicitor would have questioned the contradiction, but ruled that the covenant did not bind the landowner, thanks to the erroneous registration.
Allyson Colby is a property law consultant
