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Enjoying Rights Depends on Them Being Right

Whether we hold land on which to live, to work or to develop, we all seek to “enjoy” our land. In many cases enjoyment of our land is dependent on rights held over land owned by a third party (known as “easements”) which enable us to “enjoy” our land. Such rights may include a right of way – i.e to drive over a neighbour’s driveway – or a right to use services – i.e to use a private drain running under neighbouring land.

Such rights will generally appear in writing and recorded as a benefit for the land in question in the Property Register of a landowner’s title or as an easement in a Schedule to a lease. It is important for landowners to be aware that if there is an intention to expand the benefit of such rights (so as to include further land or to incorporate new use on existing land) then recording such intention by way of deed is advisable.

We can take an everyday example. A developer buys a parcel of land from a farmer with planning consent to build an industrial unit (“Land A”). The developer has the benefit of a right of way to access Land A so as to obtain access (“the Access Strip”) from the public highway (for the purposes of this example the Access Strip could be a mile long or just a few centimetres). The developer finds that if he buys a further metre wide strip of land (“Land B”) and revises the planning then he will be able to build a second unit. So he does so, himself, and successfully builds two new units mostly on Land A but with a flank wall of the second unit on Land B. There are no practical problems except that the developer cannot sell the second unit, why ? Land B does not have a written right of access over the Access Strip and, to make matters more problematic, Land A only has a right of way for one unit. This makes the second unit potentially unsealeable unless the farmer now grants a further right of way – disputes have occurred over less!

The recent Court of Appeal judgment in Goodman v Elwood [2013] backs the principle that the intentions of both a landowner with the benefit of a right, and a landowner with the burden of such a right, should be stated in a deed and in full. In that case, the court held that a positive covenant (a promise by the landowner) to pay maintenance for the upkeep of an access road did not pass on the sale of part of the benefitting land. This is a case that has wide-ranging implications where the arrangements between different landowners are complex.

A landowner must consider the rights that each parcel of land will require on any purchase – big or small – and this should always be in writing.

If you would like to talk to either Darren Millis or Richard Willis in our property development team about how we can help you with any development or property related matters affecting your business please call us 01908 692769.