Grants and reservations of rights of way fall foul of the law against perpetuities

A misunderstanding of the rule against perpetuities means that grants and reservations of rights of way are void. Appeals by both parties against a judge’s order which “seemed to satisfy no one” have been dismissed in Burras Otley Ltd v Johnson and others [2023] EWHC 2022 (Ch). The case concerned land in Otley, West Yorkshire, originally in common ownership. The judge found that a 1936 conveyance of land which was developed to form two semi-detached houses, Invermay and Wingfield, reserved no effective rights of way to a road, Ash Grove, in favour of the retained land. A 1937 conveyance of land adjacent to that conveyed in 1936 on which semi-detached houses, Ghyllbrook and the Croft, were also built, reserved rights to pass and repass on foot and with vehicles at all times and for all purposes for the benefit of part but not all of the retained land. Consequently, the claimant, a property developer had no rights over Wingfield’s section of a lane which led from the Croft to Ash Grove. The appeal turned on the interpretation of the covenants in the 1936 and 1937 conveyances. The claimant argued it would be uncommercial for there to be no reservation to the vendors of immediate rights of way over the land sold, along the route of a road yet to be built and the value of further development plots would be significantly impacted. The defendants, owners of the Croft, Ghyllbrook and Wingfield, argued that the right of way was contingent on the new road being built and so the grant fell foul of the rule against perpetuities which restricts the time period within which future property interests must vest to lives in being plus 21 years. On appeal the judge decided that by using the words the “said streets and roads aforesaid” the draughtsman of the 1936 conveyance intended to mirror rights granted to the purchaser of the land by reserving rights over roads to be built across both the retained land and the land conveyed without understanding the legal impact of such drafting. Consequently, both the grant and the reservation were void for perpetuity. As for the 1937 conveyance the terms of the right of way granted to the purchaser was the same as the 1936 conveyance and so the grant was void. However, the terms of the reservation were different referring to such of the proposed new road as was included in the plot of land conveyed which reserved an immediate rather than a contingent right of way over the land. Louise Clark is a property law consultant and mediator