Arguments about the acquisition of easements should be dealt with at trial

The legal battle over the use of a private driveway that provides vehicular access to two London properties situated close to the Victoria and Albert Museum has created quite a stir. The driveway in question belongs to the owners of Amberwood House, which was once owned by Margot Fonteyn, and is the subject of an express right of way in favour of Thurloe Lodge. Both of the properties are being redeveloped and, on completion of the work, the respective developers hope to sell their respective properties for more than £45m each. But the construction traffic needed to deliver materials and to remove debris from the properties occupy most of the width of the driveway and, although the developers had tried to co-operate with each other, they fell out when the developers of Amberwood House decided that the Thurloe Lodge developers were making excessive use of the driveway and took steps to exclude them from it. The Thurloe Lodge developers sought and obtained a temporary injunction permitting them to continue their building works. But they were only permitted to make deliveries and collections at prearranged times and on giving proper notice to the Amberwood House developers, who had purchased the driveway for £4.5m in 2018 from the estate that used to own it in order to facilitate the development of Amberwood House. The Amberwood House developers responded by launching the litigation in Thurloe Lodge Ltd v Amberwood Drive Ltd [2021] EWHC 1133 (Ch), seeking summary judgment on their claim that the express right “to pass and repass” granted to the owners of Thurloe Lodge did not include a right to park. Nor did it include a right to load and unload heavy construction traffic “which would not have been in the contemplation of the parties at the time when the right of way was granted, and indeed, if they were rights, they would have been drafted differently”. However, the owners of Thurloe Lodge claimed to have acquired the requisite rights by prescription or as a result of the operation of section 62 of the Law of Property Act 1925. They claimed that Thurloe Lodge had been a much-used and busy house, which used to belong to the owner of the nightclub Annabels, and that visitors, tradesmen and contractors had routinely used the driveway for parking, delivering, loading and unloading, often for substantial periods, with no objection or interference. Furthermore, the owner of Annabels, who had purchased the leasehold interest in Thurloe Lodge in 1972, had subsequently acquired the freehold interest in the property in 1998. And section 62 operates to convey, along with a freehold, any easements appurtenant to it – and, as a result, on the conveyance of a freehold to the tenant, any informal arrangements or property rights annexed to the leasehold estate are converted into freehold easements. Consequently, the judge decided that the questions of what use had occurred, and over what period, and whether there were any interruptions to that use, needed to be examined by reference to the evidential background. This ought properly to be dealt with at trial and the judge did not feel that he could or should determine the issues raised on a summary judgment application.   Allyson Colby is a property law consultant