A mistake in a conveyance can sometimes cause real difficulties later down the line. In Roberts v Parker [2019] EWCA Civ 121; [2019] PLSCS 28, the Court of Appeal had to consider the meaning and effect of a transfer in 1968. The transfer united land with an adjoining plot, which was undeveloped, and brought with it the benefit of a newly granted right of way over a private roadway. But the right of way was granted for the benefit of the newly transferred land only. In other words, the right of way did not benefit the plot of land that was undeveloped (and the transferee covenanted not to develop that plot).
The transferee also covenanted, as the owner of the undeveloped plot (and not as the owner of the newly acquired land), to contribute to the costs of maintaining the roadway. And, in the light of the specific link between that covenant and the undeveloped plot, the High Court decided that the right of way must benefit both parcels of land: Roberts v Parker [2018] EWHC 1206 (Ch).
The decision was important because, although the undeveloped plot had once enjoyed its own access to the public highway, it was now landlocked and was used as a garden ancillary to the house built on the land transferred in 1968. And, while the landowner might be entitled to use the private road to obtain access to his garden while it was ancillary to the house (Gore v Naheed [2017] EWCA Civ 369; [2017] PLSCS 111), lack of an independent right of way made it impossible to put the garden to another use (because the grantee of a right of way is not entitled to use it to get to land that is not part of the dominant tenement: Harris v Flower (1904) 74 LJ Ch 127).
However, the landowner had planning permission to build another house in his garden and the litigation between the parties had established that the covenant against development had become unenforceable as a result of an error by the Land Registry. So, if the High Court decision that the right of way benefitted both parcels of land was correct, there would be nothing to prevent development.
The Court of Appeal noted that there was an obvious mismatch in the 1968 transfer. The land transferred had the benefit of the right of way, but the obligation to contribute to the cost of its maintenance was annexed to the undeveloped plot (even though it had its own separate access to the public highway at the time). So which of these provisions was mistaken? The court ruled that a party who bears a burden is not necessarily entitled to a corresponding benefit. The right of way was granted only for the benefit of the land transferred in 1968 and the error had been to link the maintenance contribution to the land that became the garden land.
The court went on to reject the suggestion that it could imply a right of way for the benefit of the garden land. This would fly in the face of the words of grant used in the 1968 transfer and would facilitate development specifically prohibited by the restrictive covenant (which was plainly intended to be enforceable and had been enforceable between the original parties to the 1968 transfer).
Allyson Colby, property law consultant
