The legal status of rights of way that have not been specifically expressed in a conveyance are to be subject of a Court of Appeal ruling, probably next month, in a case of major significance to conveyancers.
The question has been raised by a Preston couple’s challenge to a ruling by Preston County Court Judge Gee in November 1997 that their next-door neighbours are entitled to a right of way around the side and back of their house in order to gain access to their garden.
Both properties were originally owned by Ribble Valley Borough Council. Stephen and Sarah Peckham, who brought the action, accepted that there had been a right of way between the two properties before their house was transferred into private ownership in 1982.
They bought the property 12 years later in January 1994. They claim that Judge Gee erred in ruling that when the council transferred the property to private ownership there was an implied reservation of the right of way.
Their counsel, David Gilchrist, argued that reservation of a right of way could not be implied and that if the council had intended to reserve such rights over the property it was their duty to do so expressly.
He said that if reservations of rights of way could be implied in these circumstances it would create “considerable practical difficulties” for conveyancers.
Ellison and another v Peckham and another Court of Appeal (Hirst LJ and Cazalet J) November 10 1998
David Gilchrist (instructed by Napthen Houghton Craven, of Preston) appeared for the appellants; Kevin Musaheb (instructed by Nichols Craven, of Preston) appeared for the respondents.
PLS News 13/11/98
