In Bee v Thompson [2009] EWCA Civ 1212; [2009] PLSCS 321, the Court of Appeal chose to overcome “the remorseless logic of conveyancing law and practice” in a manner that will surprise many conveyancers.
The parties had inherited adjoining properties from a family member. The testatrix tried to provide for the requisite rights of way in her will. She devised one of the parcels subject to a right of way “as existing at the date of my death” and the other with a right of way “at all times and for all purposes” connected with the piggery and slaughterhouse on the land. When she died, her executors conveyed the parcels to her beneficiaries together with and subject to “all rights of way and easements” affecting them.
In Bee v Thompson [2009] EWCA Civ 1212; [2009] PLSCS 321, the Court of Appeal chose to overcome “the remorseless logic of conveyancing law and practice” in a manner that will surprise many conveyancers. The parties had inherited adjoining properties from a family member. The testatrix tried to provide for the requisite rights of way in her will. She devised one of the parcels subject to a right of way “as existing at the date of my death” and the other with a right of way “at all times and for all purposes” connected with the piggery and slaughterhouse on the land. When she died, her executors conveyed the parcels to her beneficiaries together with and subject to “all rights of way and easements” affecting them. The testatrix did not have any legal or equitable right of way to the piggery because landowners do not need, and therefore do not enjoy, rights of way across their own land. Consequently, the assent of the land that was expressed to be subject to the right of way that existed at her death was flawed because no such right existed when she died. The owners of the track argued that the executors should have expressly reserved rights of way to the piggery when they divided the land, but accepted that there was an easement of necessity. They conceded that the owners of the piggery were entitled to use the track for agricultural purposes, but objected to their plans to build three houses on the land. The court decided that they could interpret the assents by reference to the testatrix’s will. The testatrix described a right of way “at all times and for all purposes” and, despite the impression given by the words used, had not intended to limit use of the track to agricultural purposes. She had referred to the slaughterhouse and piggery to identify the land that was to benefit from the right of way, and for no other purpose, and a change of use would not be unlawful. However, the owners of the piggery were not entitled to make excessive use of the track. Rights to use roadways “at all times and for all purposes”, in common with others, do not authorise use that would unreasonably interfere with the rights of servient landowners. The court accepted that it may be difficult to fix practicable limits on the quantity of permissible use, but ruled that the owners of the piggery were not entitled to use the track to access the proposed houses. The decision will disconcert those who had believed that, following legislation enacted in the 19th century, title to land flows from an assent and that the deceased’s will is not a document of title to which conveyancers need to refer. Fortunately, cases such as this are relatively rare. Allyson Colby is a property law consultant
