Be careful! Be specific!
Many landowners believe that “common sense” will apply if and when a dispute arises over rights in favour of, or adversely effecting, their land. However, it is very important to remember that property rights do not always reflect common sense! A lack of clarity in documentation can leave an agreement capable of being interpreted in more than one way.
A recent case, which involved a landowner’s access to his property, illustrates the point. The conveyance, which transferred a property to the landowner, gave the landowner the right to access his land at any point from his neighbour’s land.
When his neighbour wished to restrict his access to a single opening, the landowner went to court claiming that to do so would constitute an interference with his legal rights of access to his own property (as granted to him by the conveyance).
The Court of Appeal agreed that the wording of the conveyance was unclear and that, in the circumstances, a limitation on the landowner’s ability to access his own land would constitute an ‘actionable interference’. The neighbour could not restrict his right of access in that way.
Appearing at the Court of Appeal is an expensive way to settle a dispute and could have been avoided had the conveyance been more precisely worded. “Common sense” does not come into the equation at times!