Sale of three houses — Each purchaser taking a section of access road serving all three houses — Contract with first defendant purchasers making no express reservation of rights over road in favour of claimant vendor — Contract otherwise making detailed provision for use and maintenance of road — Vendor claiming that defendants wrongfully denying right of second purchaser to use section owned by defendants — Vendor basing claim upon implied reservation — Claim allowed
The claimant’s plans for the building of three houses, to be numbered 1-3, provided for them to be fronted by a private road (the road) that would start at no 1 and lead to the highway. As initially advertised, the houses were to enjoy various rights (the access rights) over the road, which was to be retained by the claimant. The first house to be sold was no 2, which the defendants agreed to buy when development had barely commenced. During the course of negotiations, the claimant informed the defendants that it no longer intended to retain the road and that the transfer of each house would include an appropriate section of the road. The contract of sale was worded accordingly, but it did not in terms declare that the claimant reserved any rights over the road. However, the contract contained various provisions (the related provisions) that, as well as conferring rights over the road in its entirety, obliged the defendants to: (i) repair and maintain their section of the road, and liaise with adjacent owners while so doing; (ii) to pay to such owners one-third of the cost of repairing and maintaining parts of the road that did not belong to them; and (iii) ensure that any subsequent buyer of their property would give equivalent covenants directly to such owners. The related provisions also required the claimant to procure the same covenants from the first buyers of nos 1 and 3.
Shortly after the defendants’ purchase, the claimant sold no 1 to B on the same terms with regard to the road. Some time later, B complained to the claimant that the defendants had denied access to their section of the road. The claimant brought summary proceedings for a declaration that, on a proper construction of the contract with the defendants, it had effectively reserved the access rights over the road for the benefit of themselves and their assigns. At a trial that was limited to a consideration of the documentary materials, the defendants, pointing to the lack of an express reservation, and relying upon Peckham v Ellison (1998) 79 P&CR 276, contended that only in the most exceptional circumstances would the court imply the reservation of an easement over the land conveyed, and that the presence of such circumstances could be determined only at a full trial.
Held: The claim was allowed.
The principle relied upon by the defendants did not apply to the present case since the contract had made express provision for the subject matter in dispute, thus enabling the court to determine, by the ordinary process of construction, whether the alleged reservation had been truly intended. Read in combination, the related provisions showed unambiguously that the owners of nos 1 and 3 were entitled to have the same rights over the access road as the owner of no 2.
Justin Althaus (instructed by Lawrence Graham) appeared for the claimant; Alan Johns (instructed by Ridley’s, of Witney) appeared for the defendants.
Alan Cooklin, barrister
