Promissory estoppel and easements go under the spotlight in Allyson Colby’s analysis of a right of way dispute.
The law on proprietary estoppel prevents promisors from asserting strict legal rights over land against promisees. It relies on the making of a representation or promise, by words or conduct, to a promisee who can show detrimental reliance on the assurance, and from which it would be unconscionable for the promisor to resile.
The doctrine usually operates to confer some interest, right or benefit in or over land on the promisee. But the Court of Appeal used the doctrine to negate an easement in Lester v Woodgate [2010] EWCA Civ 199; [2010] PLSCS 71, reasoning that a person who successfully negotiates for the release or non-enforcement of a right, such as a covenant or easement, acquires an interest in land. So the doctrine can also be used to alter or extinguish property rights.
Subsequent attempts to rely on proprietary estoppel to extinguish easements have been unsuccessful: first in Watt v Dignan [2017] EWCA Civ 1390 and, more recently, in Pezaro v Bourne [2019] EWHC 1964 (Ch). But closer examination of this last decision suggests that the owners of the servient land might have succeeded had the dominant land not changed hands.
Right of way
The litigation concerned a right of way over two residential properties in New Street, Andover. The properties, 149 and 151, were in separate ownership. But 149 went on the market and was sold to the owners of 151, who then seized the opportunity to acquire part of the garden of 147, which enjoyed the benefit of the right of way. The acquisitions enabled the owners of 151 to create a building plot, comprising land from all three gardens. The plot was large enough to house a small block of flats and was soon sold to a developer.
There was still sufficient land beside 151 to build another small house. But, having crossed the rear of the properties, the right of way turned to run along the side of 151. And the registers of title indicated that 147 still enjoyed the benefit of the right of way, although it was blocked by a fence and had not been used for many years. However, the owner of 147 believed that he had divested himself of the right of way when he parted with part of his garden and, on being approached, agreed that it could be removed from the registers of title in return for the payment of his legal fees.
The owners of 151 should have acted on that agreement immediately. But they concentrated on obtaining planning permission for the new development instead, and 147 changed hands – not once, but twice. The new owners did not know about the informal, unimplemented agreement when they bought 147, and refused to surrender the right of way. So the owners of 151 invoked the law on proprietary estoppel, claiming to have acquired an equity by estoppel because they had been led to believe that the right of way would be released.
Equity by estoppel
Section 116 of the Land Registration Act 2002 clarifies the status of equities that relate to registered land. It provides that an equity by estoppel is capable of binding successors in title, subject to the rules laid down in section 29 about the effect of dispositions on priority.
Section 29 protects the priority of interests noted on the register, as well as the priority of overriding interests. The category of overriding interests includes the interests of persons in actual occupation of land (unless the interest would not have been obvious on a reasonably careful inspection of the land at the time of a disposition and the disponee did not actually know about it).
There was no notice of the unimplemented, informal agreement in the registers of title to 147. But the owners of 151 claimed that the agreement constituted an overriding interest that bound the new owners of 147, because they were in actual occupation of both the servient land and the right of way. They argued that this was shown by the presence of notices advertising their planning application, indicating their intention to build on the site of the right of way.
Actual occupation
The judge noted that Chaudhary v Yavuz [2011] EWCA Civ 1314; [2011] PLSCS 275 had established that a dominant landowner who had been using a staircase pursuant to an oral agreement was not in actual occupation of the servient land. Similar logic could be applied in this case, but in reverse.
Furthermore, the court should be cautious, when asked to find that owners of servient land have been in occupation of an easement that affects their land – especially as the purchasers of dominant land tend to confine their inspections to the land that they are actually buying. And, although a reasonably careful inspection of the dominant land would have revealed that access to the right of way had been blocked off, the judge did not believe that servient landowners should be treated as being in actual occupation of an easement unless they have built on, or permanently altered, the land affected by the easement.
It followed that the right of way had been obstructed, rather than occupied. And the site notices indicated nothing more than an intention to build – and hence to occupy – if planning permission were granted. Consequently, the informal agreement had ceased to be enforceable against the owners of 147 when the change of ownership was registered at the Land Registry.
Allyson Colby is a property law consultant
