Easement – Rule against perpetuities – Mutual right of fire escape enjoyed by neighbouring properties – Ancillary rights to maintain staircases “over which any fire escape right may exist or hereafter exist” and to erect new staircases – Whether grant of ancillary rights void under rule against perpetuities – Whether primary right unenforceable as “right to roam” – Preliminary issues determined
The claimant owned a mews property in London W1. The neighbouring property, together and another to the rear had for many years been in a single ownership and were connected internally. Together they comprised a hotel, of which the defendant was the owner. The hotel and the claimant’s property benefited from mutual rights of fire escape, granted by deed in 1947. The right permitted passage across the other owner’s property to the nearest public highway “over or through the premises…by any reasonable means whether on the ground or the roof or at any intermediate stage or stages”. The deed further conferred, as “ancillary rights”, the right to maintain in position, inspect, repair and renew the staircases “over which any fire escape right may exist or hereafter exist hereunder”, together with the right to alter existing staircases and erect to replacements. “Staircase” was defined to include ancillary apparatus of all kinds, including exits and entrances.
Both mews properties had been altered and extended since 1947, with the result that the “staircases” giving access between the properties no longer existed. In 2001, the defendant obtained planning permission to redevelop its property to create a 21-bedroom hotel. Its architect wrote to the claimant demanding that provide external lighting, additional stair flights, a facility for keyless entry to an internal landing and an electronic sounder in the stair hall connected to the hotel’s alarm system. This gave rise to proceedings between the parties concerning the validity and extent of the right of fire escape.
On a summary judgment application relating to preliminary issues, the claimant contended that: (i) the purported grant of an ancillary right to erect and use new staircases, creating access points that did not exist at the date of grant, was void and unenforceable under the rule against perpetuities; and (ii) the primary right of fire escape was defined in such objectionably wide and undefined terms as to be inimical to the concept of an easement. The claimant submitted that a right to go over or through his property by any reasonable means was an unenforceable “right to roam” because it would require him to hold his entire property permanently available for use as a fire escape.
Held: The following preliminary issues were determined.
(1) Where the grant of an easement was not immediate but related to the future, it would be void unless it was limited to take effect only within the perpetuity period. Case law suggested that a purported grant of a right of way over a route that had not been constructed, not limited to the perpetuity period, would be unenforceable: Dunn v Blackdown Properties Ltd [1961] Ch 433 and Adam v Shrewsbury [2005] EWCA Civ 1006; [2006] 1 P&CR 27 applied; South Eastern Railway Co v Associated Portland Cement Manufacturers (1900) Ltd [1910] 1 Ch 12 and Sharpe v Durrant (1911) 55 SJ 123 considered. A right to maintain staircases over which any right of fire escape “may exist or hereafter exist hereunder” and to alter “existing staircases and erect new staircases” offended the rule against perpetuities. The grant of an ancillary right, exercisable at a future uncertain date, to erect and use new staircases creating new access points that did not exist at the date of grant, was void. That did not give rise to any injustice, especially since there would otherwise be a potential for building new staircases of a scale and in places that were not considered in 1947. The fact that the right to erect new staircases appeared as an “ancillary right” did not save it from the rule against perpetuities. Section 162 of the Law of Property Act 1925, which disapplied that rule in certain circumstances, did not save the grant; the erection of new staircases was not an activity that fell within its provisions.
(2) The extent of the right of fire escape depended primarily on a construction of the 1947 deed of grant. The case law did not disclose any policy against the provision made in that grant. Properly construed, the grant did not create a “right to roam”. The right of fire escape would by its nature be exercised only rarely and unexpectedly. Respecting that right would, in most cases, involve no more than doing what would be required by common humanity. The right could not be read as running from one fixed point to another, limited to any specific “staircase” as broadly defined or as being unchangeable with time; the parties had contemplated that the rights could be exercised over new staircases, albeit in a fashion that broke the perpetuities rule. However, the right of fire escape was to be provided in the comparatively basic form that the parties would have contemplated in 1947. There was no justification for the defendant to demand whatever means of escape it might require from time to time by reason of the expansion of its building, the development of its business and of safety requirements and an increasing number of guests. The parties could not have intended that as one property grew bigger, and the duties imposed on its owners towards hotel guests became greater, the rights of the other owner to enjoy the use of his property would increasingly diminish. The exercise of the rights required the owners to make sensible accommodation with each other over time. There was nothing in the grant that could justify all or most of the measures demanded by the defendant’s architect.
Bernard Weatherill QC (instructed by Magrath LLP) appeared for the claimant; Oliver Radley-Gardner (instructed by Irwin Mitchell LLP) appeared for the defendant.
Sally Dobson, barrister
