My land has the benefit of a right of way – but can I use it?

27 / 03 / 2018

The short answer is “that depends”. The law is not black and white on this area and the scope and wording of the actual right of way granted is vital.

The recent Court of Appeal case of Gore v Naheed is a reminder of how important it is for the scope and terms of an easement to be correct in the legal document granting it.

Background

Some land cannot be directly accessed from a public road, and it instead relies on a private right of way (also known as an easement) over another person’s land for access. An easement should be granted in a legal document which clearly sets out the land which has the benefit of the easement, the land which is subject to the easement and any rules governing the use of the easement.

The general rule is that only land expressed as having the benefit of an easement in a legal document will in fact have the benefit of that easement. An easement will not extend to adjoining land which is acquired at a later date. Problems can arise in practice where land is extended or enlarged – will that additional land benefit from the existing easement?

In the Gore v Naheed case, we are reminded of the fine line between land that can and cannot use a legal right of way.

Facts

The case centred on a house called “The Granary”, which had a right of way over an adjoining private driveway for access. The right of way was expressed to be “for all purposes connected with the use and occupation of the said granary but not further or otherwise”.

  • The owner of The Granary subsequently acquired part of the driveway adjoining The Granary and built a garage on it for The Granary. This effectively adjoined the right of way.
  • The owners of the rest of the driveway used it for deliveries for commercial purposes which sometimes blocked access to the garage.
  • The owner of The Granary applied for an injunction preventing this obstruction.

The owners of the driveway argued that the driveway could not be used to access the garage, as it was outside the scope of the right of way. Their case was based on the general rule that the right of way was for the benefit of The Granary and for “all purposes connected with the use and occupation” of it only, and did not extend to the garage which had been acquired after the grant of the easement.

Conclusion

The Court of Appeal ruled that the right of way could be used to provide access to the garage. Parking at the garage was deemed to be a purpose connected with the residential use and occupation of The Granary, and as such the existing easement was wide enough to include indirect access to the garage.

The Court did state, however, that the easement would not extend to a situation, for example, in which the garage was let to a third party separately from the occupation of The Granary.

This case is important as it appears to create an exception to the general rule that an easement must clearly specify the land which is to benefit from it and does not extend to after-acquired land. Two main issues need to be considered as to whether the exception will apply in practice:

  • do the terms of an easement apply to the claimed use?; and
  • is access to the after-acquired land subsidiary or ancillary to the use of the land benefitting from the easement?

What does this mean for you?

Easements and rights of way are often vital to a person being able to access and use their land.

It is important to fully understand what easements benefit or burden your land before entering into a sale contract or development agreement as these will govern access to, or over, your land.

Developers should be particularly aware on phased developments to ensure that any land purchased at a later stage benefits from any easements granted at the start of the development.

If your land needs an easement over adjoining land, you may be charged a large sum of money for this.

Wedlake Bell have experts who can advise on both existing easements encountered when buying land and the grant of easements to ensure land and developments have all relevant easements for their proposed use. Please get in touch if you would like some assistance navigating the legal pitfalls.