In practical terms, one of the most important issues for owners and occupiers is how to escape from a building in an emergency. Many properties enjoy rights of fire escape over adjoining land. These rights may initially appear satisfactory, but on closer scrutiny may be personal to either one or both of the parties. In some cases, the rights may be subject to conditions or liable to termination.
The decision in Megaro v Di Popolo Hotels Ltd [2007] PLSCS 55 underlines the care required in deciding whether a property has adequate and permanent rights over a fire escape. The case concerned a conveyance of a building together with a right of way over a fire escape on land that was retained by the seller. The rights granted were exercisable only while the fire escape continued to exist and the landowner reserved the right to alter the route of the emergency exit. The Court of Appeal concluded that the rights granted were not permanent and that the landowner was not under any obligation to provide his neighbour with an alternative route when the fire escape was demolished to make way for a new development.
The Court of Appeal ruled that the landowner had had the right to vary the route of the fire escape while the rights were in existence, but that the rights terminated when the fire escape ceased to exist. The arrangement reflected the possibility that the servient land might be redeveloped and the conveyance did not oblige the landowner to provide a different emergency exit. The agreement between the parties might not be commercially attractive, but the court could not substitute the agreement that might have been made had the buyer been better advised or been in a stronger bargaining position.
This case demonstrates that rights are not necessarily permanent, even though they may have the appearance of permanence because they were granted in a conveyance or transfer. It follows the decision in IDC Group Ltd v Clark [1992] 2 EGLR 184; [1992] 49 EG 103, which established that a landowner that had entered into a deed granting a licence to use a fire escape had granted rights that bound it but no one else (because it had granted a licence instead of an easement).
The commercial property standard enquiries are designed for use when properties change hands. They contain a series of questions that aim to ascertain whether the means of escape from a property passes over land between the property and the public highway. The enquiries also seek to elicit the terms upon which such rights are enjoyed. Buyers should assess the rights carefully, to assess whether they are adequate for their needs.
Allyson Colby is a property law consultant