The Court of Appeal has recently considered the extent of a right of way granted so far as it is necessary to gain access to the property. Jen Balashi, Commercial Property Paralegal, highlights the implications of the Shaw v Grouby and another (2017) EWCA case.
The Property was one of three houses that had been built in the grounds of a manor house. Between the manor house and public highway there was a driveway which formed part of the manor house title. The original transfer of the Property included a right of way over the driveway to “pass and repass over and along so much of the private driveway edged green on the plan as is necessary to obtain access to the Property”.
The plan attached to the transfer showed the whole of the driveway edged green. A wooden fence was erected along the boundary of the Property, alongside the driveway, with access to the Property from the driveway being gained through a gap in the fence (Access A). Subsequently, the owners of the Property removed the fence and built a wall along the boundary. Access to the Property was gained through gates in the wall (Access B).
The owners of the manor house claimed that the right of way in the transfer limited the access point to Access A. The owners of the Property argued that the right of way granted access to every part of the Property that abutted the driveway, and they were entitled to use Access B. At first instance, the judge found that the right of way granted access to every part of the Property that abutted the driveway. The owners of the manor house appealed.
Court of Appeal upheld the first instance decision. The owners of the manor house argued that:
- The right of way was limited to what was physically necessary to obtain access to the Property at the date of the grant. As Access A was an established entrance to the Property, there was no need for the owners of the Property to create Access B.
The court disagreed, finding that:
- It was common ground that the question of whether a right of way gives access to every part of the dominant land is one of construction of the relevant transfer.
- The plan showed the whole of the driveway edged in green and the purpose of this was to identify the maximum extent over which the right of way could be exercised.
- The interpretation of what is “necessary” could vary from time to time during the existence of the grant. This interpretation would permit the use of different points of access from the driveway to the Property.
- If the intention had been to limit the right of way to a particular and fixed point of access, the transfer would have expressly stated that.
This case should be borne in mind by lawyers acting for the seller of a right of way. As the court noted, if the intention is to limit the right of way to a particular and fixed point of access, this should be expressly stated in the grant. Therefore, any limitation must be clear on the face of the transfer, otherwise the court will construe the grant in favour of the buyer.